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99 

C5S76 


SPRAGUE 

SPEECH  OF  MR.  SPRAGUEI 
OF  MAIN 


?'  f 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SPEECH 


I 


MR.    SPRAGUE, 

OF    MAINE: 

l>£Liy£RED  IS 

TSE  SENATS  OF  THE  UNITED  STATES, 

16th  APRIL,  1830, 
IN  REPLY  TO  Messrs.  WHITE,  McKINLEY,  AND  FORSYTH, 

WPON    THE  SUBJECT  OE 

THE  REMOVAL  OF  THE  INDIANS. 


WASHINGTON  .* 


PUBLISHED  AT  THE  OFFICK  OE  THE  NATIONAL  JOVBNAL, 


PETER  FORCE,  PRINT. 
1830. 


I 


SPEECH  OF  MR.  SPRAGUE,  OF  MAINE. 


IJN  THE  SENATE  OF  THE  UNITED  STATES. 
April  16,  1830. 


The  following  amendment,  to  the  bill  for  the  removal  of 
the  Indians,  being  under  consideration  : 

"  Provided  always.  That  until  the  said  tribes  or  nations  shall  choose 
to  remove,  as  by  this  act  is  contemplated,  they  shall  be  protected  in  their 
present  possessions,  and  in  the  enjoyment  of  all  Iheir  rights  of  territory 
and  government,  as  heretofore  exercised  and  enjoyed,  from  all  interrup- 
tions and  encroachments." 

Mr.  SPRAGUE  addressed  the  Senate,  as  follows: 

Mr.  President  : 

The  gentleman,  who  has  just  resumed  his  seat  (Mr.  Forsyth,)  has 
indulged  in  a  wide  range  of  remark  in  defence  of  his  State  against  im- 
putations which  he  supposed  to  have  been  elsewhere  cast  upon  her. 
This  course  may  have  been  very  proper  in  him  ;  I  fully  appreciate  the 
motive  which  induced  it.  Bull  have  no  occasion  to  follow  him;  I  have 
no  wish  to  derogate  in  the  least  from  the  character  of  Georgia,  but  ra- 
ther that  it  should  be  as  elevated  as  her  most  devoted  sons  can  desire.  I 
shall  speak  of  her  so  far  only  as  may  seem  necessary  to  the  free  discus- 
sion of  the  subject  before  us. 

This  bill  and  amendment,  and  the  discussion,  which  they  have  produc^ 
ed,  involve  the  question  of  the  rights  and  duties  of  the  United  States 
with  respect  to  the  Indian  tribes  generally,  but  more  especially  the 
Cherokees.  With  that  people  we  have  not  less  than  fifteen  treaties.  The 
Jirstmade  in  the  year  1785,  and  the  last  in  1819. 

By  several  of  these  treaties,  we  have  unequivocally  guarantied  to 
them  that  they  shall  forever  enjoy — 

1st.  Their  separate  existence,  as  a  political  community  ; 

2d.  Undisturbed  possession  and  full  enjoyment  of  their  lands,  within 
certain  boundaries,  which  are  duly  defined  and  fully  described  ; 

3d.  The  protection  of  the  United  States,  against  all  interference  with, 
or  encroachments  upon  their  rights  by  any  people,  stale,  or  nation. 

For  these  promises,  on  our  part,  we  received  ample  consideration — 

By  the  restoration  and  establishing  of  peace  ; 

By  large  cessions  of  territory  ; 

By  the  promise  on  their  part  to  treat  with  no  other  state  or  nation  , 
and  other  important  stipulations. 

These  treaties  were  made  with  all  the  forms  and  solemnities  which 
could  give  them  force  and  efficacy  ;  by  Commissioners,  duly  appointed 
with  full  power  ;  ratified  by  the  Senate  ;  confirmed  by  the  President , 
and  announced  to  the  world,  by  his  proclamation,  as  the  binding  compact 
of  the  nation,  and  the  supreme  law  of  the  land. 


1848817 


The  Cherokees  now  come  to  us,  and  say  that  their  rights  are  in 
danger  of  invasion,  from  the  States  of  Georgia  and  Alabama  ;  and  they 
ask  if  we  will  extend  to  them  the  protection  we  have  promised,  and  per- 
form the  engagements  we  have  made.  This  is  the  question  which  they 
distinctly  propound,  and  which  we  must  unequivocally  answer;  and  we 
are  now  discussing  what  our  response  shall  be. 

There  is  a  broad  line  of  distinction  between  the  claims  of  Georgia 
and  those  of  Alabama  and  Mississippi,  which  seems  heretofore  to  have 
been  unobserved,  but  which  I  shall  endeavour  to  keep  in  view. 

Let  us  first  inquire  what  our  duties  are  with  respect  to  Georgia  ; 
for  if  her  pretensions  are  unfounded,  those  of  Alabama  and  Missis- 
sippi fall  of  course. 

It  is  not  necessary  to  determine  whether  the  Indians  have  just  grounds 
for  their  apprehensions  or  not,  because  the  question  is,  whether  if  the 
rights  secured  to  them  by  our  treaties,  should,  at  some  future  day,  be  in- 
vaded we  will  perform  our  engagements  ? 

But  have  they  not  some  cause  for  their  present  alarm  ?  In  Decem- 
ber, 1827,  a  Committee  of  the  Legislature  of  Georgia,  made  a  report 
accompanied  by  sundry  resolutions  which  were  accepted  by  both 
branches,  and  the  resolutions  also  received  the  approval  of  the  Go- 
vernor. In  the  report  we  find  the  following  language,  respecting  the 
territory  of  the  Cherokees:  "The  lands  in  question  belong  to  Geor- 
gia— she  must  snd  she  will  have  them."  And  in  the  resolutions,  the 
following : 

Resolved,  **  That  all  the  lands  appropriated  and  unappropriated, 
"  which  lie  within  the  conventional  limits  of  Georgia,  belong  to  her  abso- 
"lutely  ;  that  the  title  is  in  her;  that  the  Indians  are  tenants  at  her  will  • 
"  that  she  may  at  any  time,  she  pleases,  determine  that  tenancy  by  taking 
•*  possession  of  the  premises,  and  Georgia  has  the  right  to  extend  her 
"  own  authority  and  laws  over  the  whole  territory." 

"  Resolved,  That  Georgia  entertains  for  the  General  Government,  so 
"  high  a  regard,  and  is  so  solicitous  to  do  no  act  that  can  disturb  or  tend 
"  to  disturb  the  public  tranquillity,  that  she  will  not  attempt  to  enforce 
"her  rights  by  violence — until  all  other  means  of  redress  fail." 

"Resolved,  That  to  avoid  a  catastrophe  which  none  would  more  sin- 
*•  cerely  deplore  than  ourselves,  we  make  this  solemn  appeal  to  the 
"United  States,"  &c. 

It  is  thus  asserted  as  the  right  and  avowed  as  the  determination  of 
Georgia,  to  exercise  absolute  power  over  the  Cherokees,  and  to  take 
their  land  at  all  hazards — even  by  violence,  if  other  means  should  fail. 

The  gentleman  from  that  State,  (Mr.  Forsyth,)  observed,  in  the  com- 
mencement of  his  speech,  that  he  felt  himself  bound  in  conscience  to  re- 
lieve his  friend  from  New  Jersey,  from  all  apprehensions  of  a  violation 
of  the  faith  of  the  nation  ;  by  demonstrating  that  the  claims  of  Geor- 
gia were  supported  by  treaties.  And  he  proceeded  to  do  so  in  langauge 
so  strong,  and  tones  so  triumphant,  as  to  make  an  evident  impressioa 
upon  members  of  the  Senate.  Let  us  deliberately  examine  his  argu- 
ment. 

The  first  treaty  referred  to,  was  that  of  Galphinton,  in  1785,  by 
which  certain  concessions  were  made  to  Georgia.  But  that  was  by  the 
Creeks,  and  by  them  only,  and  had  no  relation  to  the  Cherokees,— 


(Mr.  Forsyth  explained,  he  had  remarked  upon  that  treaty  in  answer 
to  the  gentleman  from  New  Jersey,  (Mr.  Frelinghuysen,)  and  not  as 
bearing  upon  the  rights  of  the  Cherokees  )  Mr.  Spuague  resumed  ; 
he  was  glad  to  receive  the  gentleman's  explanation  ;  it  precladed  the 
necessity  of  any  further  remark  upon  that  topic. 

The  treaty  next  cited  was  that  of  Dewitt's  corner,  A.  D.  1777,  be- 
tween South  Carolina,  Georgia  and  the  Cherokees,  by  which  the  lat- 
ter acknowledge  that  a  portion  of  their  country  extending  as  far  as  the 
Unacaye  mountain,  had  been  conquered,  and  they  made  a  cessien  of 
the  same  by  defined  boundaries,  to  South  Carolina,  and  to  her  only. 
The  conquered  and  ceded  territory  lies  wholly  within  that  State  ;  and 
it  is  not  now,  and  has  not  been  for  at  least  one  generation,  either  claimed 
or  occupied  by  the  Indians.  What  right  can  that  confer  on  Georgia  to 
lands  now  own*id  and  possessed  by  the  Cherokees  ? 

The  next  position  was  that  the  right  of  his  State  was  derived  under 
the  9th  article  of  the  treaty  of  Hopewell ;  made  between  the  United 
States  and  the  Cherokees,  in  November,  1785  ;  by  which  they  gave  to 
the  United  States,  the  right  of  managing  all  their  affairs.  To  this  Geor- 
gia was  no  party.  But  the  gentleman  contends  that  the  United  States 
transferred  M  their  power  and  claims,  under  the  treaty,  to  that  State,  by 
virtue  of  the  compact  of  1802  ;  and  that  we  now  cannot  interfere  with 
her  pretensions.  The  clause  in  the  compact,  which  is  relied  upon,  is 
this — the  United  States  "  cede  whatever  claim,  right  or  title,  (hey  may 
have  to  the  jurisdiction  or  soil  of  any  lands  lying"  within  the  limits  of 
Georgia. 

Does  this  relinquishment  of  the  right  of  the  United  States,  to  the  soil 
and  jurisdiction  of  the  lands,  purport  to  transfer  a  pre-existing  treaty 
with  the  Indians  ?     Was  it  so  intended  ? 

And  if  it  had  been,  is  the  power  which  the  treaty  confers  to  legislate 
for  their  benefit,  in  its  nature  transferable  ?  The  Article  is  in  these 
words,  '•  For  the  benefit  and  comfort  of  the  Indians,  and  for  the  preven- 
"  tion  of  injuries  and  oppressions  on  the  part  of  the  citizens  or  lndians,the 
"  United  States  in  Congress  assembled,  shall  have  the  sole  and  exclusive 
"  right  of  regulating  the  trade  with  the  Indians,  and  managing  all  their 
"affairs  in  such  manner  as  they  think  proper."  The  power  given  is 
strictly  personal  and  fiduciary  ;  to  be  exercised  according  to  our  judg- 
ment upon  future  events,  and  for  their  benefit.  Can  even  a  guardian 
transfer  his  rights  and  duties  at  pleasure  ?  By  the  constitution — the 
fundamental  compact — Georgia  has  given  to  the  United  States  the  right 
to  legislate  in  certain  cases  over  her  citizens  for  their  benefit,  for  ex- 
ample, to  organize,  arm,  discipline  and  call  forth  her  militia.  Can  the 
United  States  transfer  this  right  to  South  Carolina,  or  any  other  So- 
vereign ? 

The  express  words  of  the  article  require  this  right  to  be  exercised  by 
the  United  States  "  inCongress  assembled.''''  Can  we  without  the  consent 
of  the  other  party,  strike  out  these  words  and  insert — the  Legislature 
of  Georgia  ? 

Again — in  order  to  see  that  this  power  is  properly  exercised,  the 
13th  Article  secures  to  the  Cherokees,  "  the  right  to  send  a  deputy  of 
"their  choice,  whenever  they  think  fit  to  Congress.'^  Shall  he  come 
here,  to  watch  over  the  legislation  at  Milledgeville  ■? 


6 

But,  if  this  power  was  in  its  nature  transferable,  it  must  be  so  subject 
to  the  restrictions  and  lioiitatioQS  in  the  treaty  contained.  Among  which 
are  the  following  :  — 

1st.  That  the  Cherokees  shall  continue  to  exist  as  a  distinct  political 
community,  under  the  protection  of  the  United  States. 

2d    That  they  shall  enjoy  the  undisturbed  possession  of  their  lands: 

3d.  That  the  power  to  manage  "  their  affairs^''  shall  be  exercised 
"  for  the  benefit  and  comfort  of  the  Indians  ;  and  for  the  prevention  of 
"injuries and  oppressions." 

Did  this  give  to  the  United  States,  the  right  to  drive  them  from  all 
their  lands  ? — Or  to  destroy  the  Cherokee  nation,  to  strike  it  out  of  exis- 
tence; and  instead  of  managing  for  their  "  benefit,"  to  annihilate  "  their 
affairs,"  as  a  body  politic  ?  Or  could  we  convey  a  greater  right  than 
we  ourselves  possessed  ? 

But  this  is  not  all.  The  Gentleman  passed  over  in  utter  silence,  a 
most  important  event  which  intervened  between  the  treaty  of  Hopewell 
and  the  compact  of  1802.  It  is  the  treaty  of  Holsten  made  in  1791  ;  by 
which  the  United  States  again  promised  the  Cherokees  to  protect  them 
in  their  rights  as  a  nation  ;  and  the  7th  Article  holds  the  following  lan- 
guage :  "  The  United  States  solemnly  guarantee  to  the  Chero- 
kee NATION,    ALL    THEIR  LANDS    NOT  HEREBY  CEDED."       If  any  right  WaS 

transfered  to  Georgia,  it  would  be  such  only  as  existed  at  the  time,  and 
subject  of  course  to  the  stipulations  of  that  pre-existmg  treaty. 

There  is  still  another  view  of  this  subject.  Are  we  not  bound  to  see 
that  our  treaties  are  fulfilled  ?  The  Indians  say  that  their  very  exis- 
tence was  threatened,  anJ  inquire  of  us  whether  we  will  perform  our 
solemn  promise  of  protection.  What  shall  we  answer  ?  That  we  have 
conveyed  that  promise  to  another  ! — that  we  have  transferred  our  obli- 
gation to  Georgia  ! — have  given  her  a  license  to  violate  our  treaties  ! 
May  they  not  reply,  that  the  very  purpose  for  which  they  purchased 
our  guaranty,  and  the  protection  of  the  strong  arm  of  our  Government 
was  to  secure  them  against  the  encroachments  of  their  white  neighbors 
in  thai  State  ? 

The  compact  of  1802,  which  has  been  so  much  insisted  upon,  was 
made  between  the  United  States  and  Georgia.  The  Cherokees  were 
net  parties,  nor  even  assented  to  it.  Of  course  it  could  not  impair  their 
rights,  or  confer  upon  others  any  claim  against  them.  If  I,  Mr.  Presi- 
dent, should  promise  the  gentleman  that  I  would  obtain  your  farm  and 
convey  it  to  him — would  that  divest  your  title,  or  authorize  either  of  us 
to  wrest  it  from  you  by  force  ?  The  compact  itself  expressly  recogniz- 
ed "the  Indian  title,"  and  the  United  States  were  to  extinguish  it  only 
when  it  could  be  done  "  peaceably"  and  on  "  reasonable  terms." 

The  gentleman  having,  as  he  supposed,  fully  sustained  the  treaty 
claims  of  Georgia,  by  the  arguments  upon  which  I  have  remarked,  tri- 
umphantly exclaimed,  "  I  will  have  my  bond,  I  will  have  my  pound  of 
Jlesh." — A  most  unfortunate  allusion.  Sir;  and  one  which  I  should  not 
have  been  unkind  enough  to  make.  He  will  have  his  pound  of  quiver- 
ing flesh  taken  from  nearest  the  heart  of  the  living  man  !  But  he  will  take 
it  without  one  drop  of  blood.— 

"Ay — there's  the  rub" 

For,  in  the  cutting  of  that  pound  of  flesh 

What  huoaaa  blood  shall  flow — "  must  give  us  pause«^' 


The  fiend- like  Shy  lock  himself  could  not  take  the  penalty  of  bis 
bond,  because  "  no  jot  of  blood"  was  given.  And  none  is  given  here, 
but  the  express  contrary — "  peaceably" — "peaceably'" — and  "upon  rea- 
sonable tern)s"  too,  is  the  emphatic  language.  But  against  whom,  does 
the  gentleman  make  his  claim — the  Indians  ?  Does  he  hold  their  bond  ? 
No — they  hold  ours — they  now  present  it  to  us  and  demand  its  perform- 
ance— and,  "till  he  can  rail  the  seal  from  off  that  bond,"  he  cannot  ab- 
solve us  from  its  obligations.  He  declares  that  he  will  have  the  terms 
of  his  compact  fulfilled  to  "the  twentieth  part  of  one  poor  scruple," 
and  to  the  division  of  a  hair.  So  be  it ;  and  let  the  Indians  too  have 
their  guarantied  rights  maintained  with  equal  scrupulosity. 

The  Hon. Chairman  of  the  Committtee  on  Indian  Affairs  (Mr.White,) 
conceded  that  the  United  States  had  repeatedly  pledged  their  faith  to  the 
Cherokees  to  interfere  for  their  protection,  but  contended  that  we 
ought  not  to  perform  these  stipulations  of  our  treaties  because  of  the 
conflicting  claims  of  Georgia.  He  laid  down  this  proposition,  that  if  the 
United  States  had  come  into  engagements  inconsistent  with  each  other, 
so  that  it  was  impossible  to  keep  both,  that  that  which  was  prior,  in 
point  of  time,  should  be  specifically  performed,  and  ample  compensation 
be  made  for  the  breach  of  the  other. 

To  this  position  1  freely  assent;  and  upon  this  basis  will  rest  the  argu- 
ment. 

It  is  incumbent  then  upon  the  Hon.  Chairman  to  show  in  the  first 
place,  that  our  obligations  to  Georgia  are  incompatible  with  our  treaties; 
and,  in  the  next  place  that  they  are  of  prior  date.  This,  he  and  two 
gentlemen  who  followed  him  in  the  debate  (Messrs.  M'Kinley  and  For- 
syth) have  atten^ted  to  do.  Their  argument  is,  that  before  the  Revo- 
lution, Great  Britain  had  jurisdiction  over  the  aborigines  and  the  sole 
right  of  treating  with  them,  and  that  this  power  was  wrested  from  her 
by  conquest  during  the  war,  and  forever  abandoned  by  the  treaty  of 
peace  in  1783. 

I  would  first  observe  that,  if  it  was  obtained  by  conquest  it  belonged 
to  the  conquerors.  And  who  were  the  conquerors  ?  The  United  States; 
who  were  also  a  party  to  the  treaty  of  peace.  Upon  this  ground  it  was, 
that  New  Jersey,  Delaware,  Maryland,  and  other  States  so  strongly 
insisted  that  the  Crown  lands,  which  had  been  acquired  by  the  common 
arm  and  at  the  common  expense,  belonged  of  right  to  the  common  fund. 
Their  demand  to  a  great  extent  succeeded.  The  several  States  yielded 
to  their  pretensions  by  successive  cessions  ;  Virginia  magnanimously  tak- 
ing the  lead. 

But,  Mr.  President,  I  shall  not  dwell  upon  this  ;  for  I  mean,  as  far  as 
possible,  to  avoid  all  debateable  ground. 

Concede  then,  for  the  present,  that  when  Georgia  became  indepen- 
dent, in  1776,  she  at  once  succeeded  to  all  the  preexisting  rights  of  Great 
Britain  over  the  unmeasured  forests  within  her  chartered  limits.  What 
was  that  right  ?  Gentlemen   say  it  was  the  right  of  discovery. 

Discovery,  Sir,  confers  no  claim  or  right  against  the  natives— ^the 
persons  discovered — but  only  as  between  discoverers.  It  is  said  that 
the  rights  derived  from  this  source  were  established  and  defined  in. 
Europe,  upon  the  first  discovery  of  this  country.  True  ;  but  it  was 
by  the  mutual  understanding  and  agreement  of  the   nations  of  that 


8 

continent  only,  in  order  to  regulate  their  conduct  among  themselves. 
To  prevent  conflict  and  collision,  it  was  tacitly  agreed  that  the  Sove- 
reign, who  should  find  a  country,  theretofore  unknown,  should  have 
the  exclusive  right  to  the  henefits  of  the  discovery,  and  should  be 
permitted  without  interference  to  conduct  toward  the  aboriginal  inhabi- 
tants according  to  his  conscience,  and  his  ability.  He  had  therefore,  as 
against  discovering  nations  who  had  assented  to  the  arrangement,  a 
conventional  right  (o  wage  war  upon  and  conquer  the  natives  and  sub- 
ject them  to  his  sway.  It  is  this  right  to  which  it  is  contended  chat  Geor- 
gia succeeded  upon  the  declaration  of  Independence.  Let  it  be  so 
considered;  and  that  in  the  war  which  she  should  wage  to  subjugate 
thelndians,  no  other  state  or  nation  could  rightfully  interfere.  But 
the  people  attacked  had  a  right  to  resist.  They  surely  were  under  no 
obligation  to  acquiesce  in  the  proposed  subjugation.  Suppose  then 
that  they  should  happen  to  be  too  strong  tor  their  assailants  ;  that 
they  should  roll  back  the  tide  of  war — the  hunters  should  be  hunted — 
that  those  who  came  to  conquer,  should  be  in  danger  of  being  conquer- 
ed ;  and,  in  such  emergency,  the  people  of  Georgia  should  call  upon 
another  State,  Virginia  for  example,  for  protection,  and  defence-  Geor- 
gia would  thus  have  waived  her  conventional  right  to  exclude  all  others 
from  her  limits,  and  Virginia  would,  at  her  request,  become  a  party  to 
the  war.  Would  not  Virginia  then  have  the  right  to  make  peace  for  the 
security  of  her  own  citizens,  and  must  she  not  be  bound  by  its  terms  ? 
Was  France  bound  by  her  treaty  of  alliance  with  us  during  the  revo- 
lution ?  Yet  her  interference  was  without  the  consent  of  Great  Britain, 
the  discoverer.  Are  the  United  States  now  bound  by  their  treaties  with 
the  states  of  South  America  ? 

But  further,  what  if  Georgia,  in  order  to  induce  her  neighbours  to  come 
in  for  her  defence,  had  expressly  agreed,  before-hand  that  Virginia 
should  have  the  sole  power  ot  conducting  the  war,  and  concluding  the 
peace.  Would  not  both  States  be  bound  by  the  treaty  of  peace  thereupon 
made  by  Virginia  ?  To  proceed  one  step  further,  suppose  that  this  ar- 
rangement between  the  two  States,  instead  of  being  occasional  should  be 
established  by  a  permanent  compact ;  and  that,  in  order  to  obtain  the 
aid  and  protection  of  Virginia,  at  all  times,  against  the  attacks  of  the  In- 
dians, Georgia  should  agree  that  she  never  would  herself  provoke  such 
attacks  by  making  war  upon  them,  and  that  if  it  should  arise,  her  more 
powerful  ally  should  have  the  entire  management  of  the  war,  and  the 
exclusive  right  of  agreeing  upon  the  terms  of  peace  and  making  the 
treaty. — Would  not  such  terms  be  obligatory  ? 

Now,  Sir,  such  a  compact  was  actually  made  by  Georgia  with  Virginia 
and  eleven  other  States,  by  the  Articles  of  Confederation. 

By  the  third  Article,  the  United  States  are  bound  to  assist  the  several 
States,  "  against  all  force  offered  to,  or  attacks  made  upon  them,  or  any 
of  them."  And  by  the  ninth  Article,  the  United  States  have  "the 
sole  and  exclusive  right  and  power  of  determining  on  peace  and  war, 
except  in  the  cases  mentioned  in  the  6th  article,"  and  also  of  "entering 
into  treaties." 

Here  is  the  express  grant.  What  answer  can  be  given  to  it  ?  What 
reason  can  be  assigned,  why  each  State  should  not  be  bound  by  the  stip- 
ulations of  a  treaty  of  peace  ?    Will  it  be  said  we  could  not  have  the'  re- 


latioDS  of  war  and  peace  with  the  Indian  tribes  ?  Ask  the  relatives  of 
Brad'dock  and  Butler,  of  Wayne,  Harmer,  and  St.  Clair,  if  Indians  can 
wage  war  '  Consult  the  crimsoned  pages  of  your  history  and  they  will 
answer  you.  Nay  to  banish  such  a  suggestion  forever,  that  sanae  9th  Ar- 
ticle of  Confederation  expressly  declares,  that  by  war  it  means  to  in- 
clude contests  with  Indians  ;  for,  by  reference,  it  incorporates  into  it 
the  6th  article,  which  is  in  these  words  : 

"Art.  6.  No  State  shall  engage  in  any  war  without  the  consent  of  the 
"  United  States,  in  Congress  assembled,  unless  such  State  be  actually  in- 
''  vaiied  by  enemies,  or  shall  have  received  certain  advice  of  a  resolu- 
"  tion  formed  by  some  nation  of  Indians  to  invade  such  State,  and  the 
"  danger  is  so  imminent,  as  not  to  adnrjt  of  a  delay,  till  the  United  States, 
"  in  Congress  assembled,  can  be  consulted."  Here  is  also  an  une- 
quivocal relinquishment  by  each  State,  of  the  right  to  make  war  upon 
the  natives. 

During  the  revolution,  war  actually  existed  between  the  United  States 
and  the  Cherokees  ;  it  continued  to  rage  after  the  acknowledgment  of 
our  independence  by  Great  Britain.  Georgia  needed  our  aid,  and  re- 
ceived it.  The  Indians  were  then  powerful  and  terrific.  The  United 
States  were  desirous  of  peace;  they  sought  it,  and  it  was  established  in 
1785,  by  the  treaty  of  Hopewell,  which  has  been  already  referred  to. 
It  secured  to  the  Cherokees,  their  previous  right  to  exist  as  a  com- 
munity, upon  the  territory  in  their  previous  possession.  Such  a  treaty 
would  have  been  obligatory  upon  any  State,  if  the  Articles  of  Confed- 
eration had  never  existed  ;  but  by  that  compact  a  right  was  expressly 
given  by  Georgia  herself  to  make  it,  and  the  United  States  were  in  duty 
bound  to  exercise  that  power. 

And  now  I  ask  what  prior  incompatible  obligations  to  Georgia  absolve 
us  from  its  stipulations,  or  render  it  impossible  to  fulfil  them  ? 

Such  was  the  power,  and  such  the  practice  of  the  Confederation  up  to 
the  time  of  the  formation  of  our  present  constitution,  in  September,  1787, 
No  longer  previous  than  the  preceding  month,  we  find  a  Committee  of 
Congress,  in  an  able  and  elaborate  report,  declaring  that  the  United 
States  cannot  interfere  in  behalf  of  a  State  agamst  a  tribe  of  Indians,  "  but 
•'  on  the  principle  that  Congress  shall  have  the  sole  direction  of  the  war 
'•  and  the  settling  of  all  the  terms  of  peace  with  such  Indian  tribe."  And 
this  language  was  addressed  particulary  to  Georgia  by  name,  and  with  re- 
spect to  the  Indians  within  her  limits.     This  was  in  August. 

The  Constitution  was  formed  in  the  following  September.  The  6th 
Article  declares,  that  "  treaties  mode,  or  which  shall  be  made  under  the 
"  authority  of  the  United  States  shall  be  the  supreme  law  of  the  land" — 
"  any  thing  in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
"  withstanding."  This  was  an  express  confirmation  of  the  treaty  of 
Hopewell  ;  which  had  been  made  in  November,  1785,  less  than  two 
years  before,  and  was  then  in  full  force. 

The  State  of  Georgia,  with  full  knowledge  that  it  had  been  so  made, 
and  that  it  was  considered  by  the  United  States,  to  be  valid  and  obliga- 
tory, voluntarily  adopted  the  Constitution,  thereby  herself  most  solemnly 
affirming  and  establishing  that  treaty  ;  and,  whatever  may  have  been 
said  before,  never  since  that  time,  until  recently,  when  the  present  con- 
troversy  arose,  has  she  in  any  manner  denied  its  validity,  or  objected  to 
its  being  carried  into  effect. 


10 

tjuch  is  the  argument  in  bupport  of  the  treaty  of  Hopewell.  1  shall 
leave  it  by  adducing  but  one  other  proof  of  its  validity,  in  the  opinion 
of  General  Washington,  and  the  Congress  of  1778,  and  their  determi- 
nation to  enforce  it  with  scrupulous  fidelity.  It  is  the  proclamation  of 
Sept.  1,  1778,  which  declares  it  to  be  "  the  lirm  determination  of  Con- 
egress  to  protect  the  said  Cherokees  in  their  rights,  according  to  the 
''■  the  true  intent  and  meaning  of  the  said  treatj;"  and  a  resolution 
was  adopted  to  hold  in  readiness  a  sufficient  number  of  troops  to  enforce 
that  declaration. 

Under  our  present  Constitution  many  treaties  have  been  regularly 
made  with  the  Cherokees.  The  first  was  at  Holsten  in  1791.  The 
reasons  which  have  been  adduced  in  support  of  the  power  to  make  the 
treaty  of  Hopewell  are  applicable  to  this  with  increased  force. 

The  Constitution  was  formed  because  the  Confederation  was  too  weak 
to  answer  the  purposes  of  the  Union.  It  substituted  a  Government  in 
place  of  a  mere  confederacy,  conferring  upon  it  additional  powers,  and 
further  limiting  those  of  the  individual  States.  By  the  articles  of  Con- 
federation, the  power  of  Congress  to  regulate  the  trade  and  manage 
affairs  with  the  Indians  was  subject  to  a  proviso  that  "  the  legislative 
"right  of  finy  State  within  its  own  limits  should  not  be  infringed." 
This  restriction  is  the  only  ground  upon  which  doubts  could  ever 
have  been  suggested  of  the  power  of  the  Confederation  to  enter  into 
treaty  stipulations  :  it  gave  no  countenance  however  to  such  suggestions, 
because  it  was  a  limitation  upon  another  grant  of  power,  distinct  from 
that  of  establishing  peace  and  making  treaties.  But  even  this  restric- 
tion is  omitted  in  the  Constitution,  and  Congress  are  empowered  to  regu- 
late commerce  with  the  Indian  tribes  in  unquahfied  terms. 

The  Constitution  vests  in  the  United  States  the  sole  and  exclusive 
power  of  making  war  and  conducting  peace.  It  expressly  provides 
"that  no  State  shall  engage  in  war"  or  "enter  into  any  treaty." 
Here  is  an  unequivocal  relinquishment  of  the  right  of  Georgia  to  make 
war  upon  or  treat  with  the  Indians.  And  what  is  the  right  which  it  is 
said  devolved  upon  her  as  successor  to  the  sovereignty  of  Great  Britain? 
The  right  of  a  discoverer;  that  is,  a  right,  as  against  others,  and  without 
their  interposition,  to  attack,  and  by  force  subdue  the  natives  ;  to  make 
war  for  the  purpose  of  conquest.  But  Georgia  covenants,  by  our  fun- 
damental compact,  not  to  engage  in  war  for  that  or  any  other  purpose  ; 
to  attack  no  nation  or  political  community. 

The  United  States  have  the  sole  power  of  making  peace  ;  this  can  be 
done  only  by  treaty.  At  Hopewell  in  1785,  we  made  a  treaty  of  peace. 
Open  war  had  raged  between  the  United  States  and  the  Cherokees  up 
to  that  time.  They  had  been  the  allies  of  Great  Britain,  but  never  had 
been  ours,  or  in  any  manner  contracted  with  us.  Was  not  that  treaty 
rightfully  made  and  obligatory  ? 

At  Holsten,  in  1791,  we  made  a  treaty  of  peace  and  friendship. — It  is 
30  denominated  on  the  face  of  it.  It  was  the  tprmination  of  an  actually 
existing  war;  of  this  there  is  no  doubt.  The  Chairman  of  the  Commit- 
tee of  Indian  affairs,  in  his  written  opinion  of  1824,  states  the  fact,  that 
war  was  raging.  The  gentleman  from  Georgia  says  that  his  State  ap- 
plied to  the  United  States  for  aid  and  protection  in  that  war.  The  re- 
port of  the  Conamittee  of  Indian  affairs  now  before  us  declares  that  the 


u 

Cherokees  waged  war  against  the  citizens  of  the  United  States.  At 
Holsten  we  then  undeniably  made  a  treaty  of  peace  to  terminate  an  ex- 
isting war.  The  authority  was  express  and  exclusive.  Are  not  the 
United  States  bound — will  they  abide  by  it  ? 

The  1st  article  is — "  There  shall  be  perpetual  peace  and  friendship 
"  between  all  the  citizens  of  the  United  States  of  America,  and  all  the 
"individuals  composing  the  whole  Cherokee   nation  of  Indians." 

"  Article  7th — The  United  States  solemnly  guaranty  to  the  Cherokee  nU' 
lion,  all  their  lands  not  hereby  ceded.'''' 

"  Article  15lh — All  animosities  for  past  grievances  shall  henceforth 
"  cease,  and  the  contracting  parties  will  carry  the  foregoing  treaty  into 
'■^full  execution  with  all  good  faith  and  sincerity." 

The  question  now  is,  shall  we  carry  these  articles  into  effect  with 
any  good  faith  or  sincerity  ? 

Will  it  be  pretended  that  the  United  States  might  make  peace,  but 
had  no  authority  to  insert  such  stipulations  as  those  I  have  quoted.  Sir, 
the  substance  of  these  articles  are  of  the  essence  of  a  treaty  of  peace. 
In  every  contract  each  party  recognises  the  separate  existence  of  the 
other  ;  and  a  treaty  of  peace — not  a  truce,  not  an  armistice,  not  a  tem^ 
porary  cessation  of  hostilities,  but  a  treaty  of  peace,  in  its  nature  a  per- 
manent, enduring  contract,  must  bind  each  party  to  respect  the  exis- 
tence of  the  other,  and  never  to  assail  or  attempt  its  destruction — must 
obligate  each  also  to  permit  the  other  to  continue  that  existence  upon  its 
own  territory  without  attack  or  violence.  To  attempt  to  expel  them  by- 
force,  or  subjugate  or  destroy  their  separate  being,  is  a  violation  of  the 
compact  of  peace,  and  a  renewal  of  the  war.  In  terminating  hostilites 
therefore,  by  their  undoubted  constitutional  power,  the  United  States, 
not  only  rightfully,  but  of  necessity,  embraced  such  terms  as  these.  Are 
they  not  obligatory  ?  1  am  not  contending,  Mr.  President,  that  the 
United  States  can  cede  away  a  part  of  any  State  to  a  foreign  nation,  a3 
France  or  Great  Britain,  for  example.  That  question,  I  do  not  mean 
to  touch  ;  it  is  wholly  unnecessary.  I  only  say  that  they  may  agree 
that  the  other  party  may  continue  to  exist  upon  the  lands  which  they 
have  always  occupied  ;  may  retain  that  which  has  ever  been  their  own. 

But  this  is  not  all.  The  Constitution  proceeds  still  further  and  gives 
to  the  United  States  the  general  right  to  make  treaties,  not  merely  of 
peace,  but  all  others.  This  power  is  not  only  clearly  and  positively 
conferred  on  the  Union,  but  expressly  inhibited  to  its  several  members. 
It  has  been  repeatedly  and  continually  exercised  in  relation  to  the  In- 
dian tribes  within  the  United  States,  and  that  by  the  acquiescence  and 
assent  of  Georgia  herself. 

I  know  it  is  said  Georgia  protested  ;  and  this  has  been  repeated, 
reiterated  and  insisted  upon  in  every  variety  of  form,  as  applicable  to 
both  the  treaties  and  all  the  questions  which  have  been  presented. 
Let  us  examine  : 

The  first  alleged  protest  was  in  Feb.  1 78G,  prior  to  the  treaty  of  Hol- 
sten. It  is  the  report  of  a  committee,  accepted  by  the  House  of  Repre- 
sentatives only.  The  objections  urged  therein  apply  exclusively  to  the 
treaty  of  Hopewell,  and  must  have  rested  only  on  the  ground  of  the  reser- 
vation, before  mentioned,  in  one  of  the  Arliclea  of  Confederation  and 
which  was  omitted  in  the  Constitution 


12 

The  next  protest  was  io  Feb.  1797 — It  makes  no  objection  whatever 
to  the  treaty  of  Holsten,  and  thereby  impliedly  approves  and  assents  to 
it.  It  protests  against  two  treaties  with  tiie  Creeks  made  at  New  York, 
and  Colerain,  and  the  intercourse  law  of  the  United  States.  The 
grounds  of  objection  insisted  on  are,  that  the  intercourse  law  places  the 
militaiy  above  the  civil  authority,  and  prohibits  pursuit  and  retaliation 
for  Indian  outrages.  That  the  Creeks  by  the  treaty  of  Galphinton  in 
1785,  confirmed  by  a  subsequent  treaty  at  Shoulderbone,  had  submitted 
themselves  to  Georgia  and  become  members  of  the  State,  and  ceded  to 
her  a  tract  of  land  which  had  been  actually  organised  into  a  county  by  the 
name  of  Tallassee.  And  the  State  protests  "  because  the  treaty  of 
"  New  York  in  1790,  after  the  said  cession  being  acted  on  eonstitu- 
"tionally  erected  and  laid  out  in  a  county,  and  the  lands  appropriated, 
"  did  sever,  cut,  and  lop  off" the  land  so  ceded  before  the  power  of  the  fed- 
*' eral  constitution  existed,  and  ex  post  facto  declared  they  were  vest- 
*' ed  in,  and  belonging  to,  the  Creek  Nation  of  Indians  ;  and  because 
*'  the  said  intercourse  law  and  treaty  of  Coleraine  have  confirmed  the 
"same" 

Their  complaint  is,  substantially,  that  the  United  States  had  taken 
from  Georgia,  lands  which  had  "  been  duly  ceded,  fairly  paid  for, 
"  and  legally  and  constitutionally  laid  out  into  a  county."  In  con- 
clusion, they  "  most  fervently  solicit  a  revision  of  the  intercourse 
«'  law  and  the  New  York  and  Coleraine  treaties,  and  requiring  a  con- 
"  firmation  of  the  county  of  Tallassee  to  the  State."  And  "  they  most 
*'  earnestly  solicit  the  assistance  of  the  United  States  to  attain  the  cession 
"  of  land  the  treaty  of  Coleraine  they  trust  was  intended  to  establish." 
These  protestations  insist  that  the  treaties  of  Galphinton  and  Shoulder- 
bone  were  valid  by  reason  of  the  before-named  reservation  in  the  Arti- 
cles of  Confederation  ;  but  no  where  deny,  and  by  implication  admit,  the 
general  right  of  the  United  States  to  make  treaties  with  the  Indian  tribes, 
and  guaranty  to  them  the  possession  of  their  lands. 

They  do  not  breathe  a  whisper  of  objection  to  the  treaty  of  Holsten, 
of  1791,  or  to  any  of  the  powers  involved  in  making  it,  but  acquiesce 
therein. 

In  February,  1796,  by  an  act  of  her  Legislature,  to  which  I  shall 
hereafter  recur,  she  expressly  declared  that  the  United  States  had  the 
right  to  make  treaties  vf'ith  the  Indians  ;  a  right  which  they  have  con- 
tinually exercised  and  which  she  has  never  questioned,  until  this  recent 
controversy  arose.  Not  less  than  fourteen  treaties  have  been  entered 
into  with  this  same  Cherokee  Nation  since  the  adoption  of  the  Constitu- 
tion :  in  1791, 1792  and  1794,  by  General  Washington  ;  in  1798,  by  Mr. 
Adams  ;  one  in  1804,  two  in  1805,  one  in  1806,  and  one  m  1807,  by 
Mr.  Jefferson  ;  three  in  1816,  by  Mr  Madison  ;  one  in  1817,  by  Mr. 
Monroe — General  Jackson  being  the  negotiator  ;  and  in  1819,  by  the 
same  President — Mr.  Calhoun  being  the  negotiator. 

By  more  than  half  these  treaties,  large  cessions  of  land  were  obtained, 
boundaries  defined,  and  the  remaining  territory,  and  the  protection  of 
the  United  States  again  and  again  guarantied  to  the  Indians. 

Shall  Georgia  now  be  permitted  to  deny  their  validity  ?  If  a  man  see- 
ing another  in  the  act  of  making  a  deed  of  his  land,  to  a  third  person, 
shall  stand  by  in  silence,  until  the  conveyance  is  completed,  and  the 


13 

grantee  has  parted  with  his  money,  paid  the  consideration,  would  any 
Chancellor,  that  ever  sat  in  a  Court  of  Equity,  permit  that  man  to  re- 
claim his  property  and  thus  consummate  a  fraud  on  the  fair  purchas^er  ? 
But  suppose  that  he  shall  not  only  thus  witness  the  conveyance  per- 
fected and  the  money  paid,  but  himself  receive  the  consideration  ;  can 
he  with  the  fruits  of  the  contract  in  his  pocket,  lay  his  hand  upon  the 
property,  and  wrest  it  from  the  innocent  grantee  ?  Georgia  not  only 
acquiesced  but  actually  received  all  the  lands  ceded  by  the  Indians, 
and  for  which  they  obtained  our  promise  of  protection.  I  have  in  my 
hand  some  of  her  laws  disposing  of  the  acquisitions. — 

The  title  of  one  is  : — "  An  act  to  dispose  of  and  distribute  the  cession 
"  of  land  obtained  from  the  Creek  and  Cherokee  nations  of  Indians  by 
"the  United  States,  in  the  several  treaties  of  10  August,  1814  ;  8  July, 
^'  181*7  ;  and  22  January,  1818." 

And  of  another,  "  An  act  to  dispose  of  the  territory  lately  acquired 
"  of  the  Cherokee  Indians  by  a  treaty  held  by  the  Honorable  John  C. 
"  Calhoun,  at  the  City  of  Washington,  on  the  27th  day  of  February, 
'•  1819."     There  are  others  of  similar  tenor. 

And  now  retaining  these  acquisitions,  holding  the  proceeds  of  these 
treaties  in  her  hands,  she  declares  that  they  are  invalid  ;  thus  at  the 
same  moment  binding  the  Indians  by  their  stipulations  and  denying 
them  the  benefit  of  ours. 

She  has  not  only  thus  declared  the  right  of  the  United  States,  to  make 
treaties  and  assented  to  them  when  made,  but  has  repeatedly  urged  that 
they  should  be  entered  into  for  the  purpose  of  obtaining  further  acqui- 
sitions for  her  benefit;  and  even  as  late  as  the  year,  1825,  contended 
that  the  treaty  of  the  Indian  Springs  with  the  Creeks  was  obligatory,  and 
should  be  carried  into  effect. 

And  it  was  not  until  the  Indians  had  firmly  refused  to  assent  to  further 
cessions,  and  it  was  perceived  that  no  more  lands  could  be  acquired 
by  negotiation,  that  the  doctrine  arose  which  denies  to  the  United  States, 
their  right  to  make  these  compacts. 

Mr.  President :  what  have  the  Senate  heard  to  obviate  the  force  of 
the  facts  and  arguments,  which  I  have  adduced  ?  What  answers  have 
been  given  ?     I  will  advert  to  them  all. 

And  first,  as  to  the  acts  and  acquiescence  of  Georgia,  we  have  the  reply 
in  the  report  of  the  Committee,  that  as  she  protested  against  the  treaty  of 
Hopewell,  made  in  1785,  "  no  inference  can  be  drawn  to  her  disadvan- 
"  tage,  from  her  silence  or  from  any  thing  she  may  have  said  in  relation  to 
"  any  subsequent  treaty,  because  in  each  of  them  a  change  was  made,  by 
''  which  a  portion  of  her  territory  and  jurisdiction  was  restored  to  her, 
"  and  thus  her  condition  rendered  better,"  &c.  Who  does  not  perceive 
that,  under  this  form  of  words  oi restoring — wtiat  she  never  possessed  ; 
but  which  belonged  to  the  Cherokees,  before  she  had  a  being — the  sub- 
stantial, real  cause  of  her  assent  is  alleged  to  be  the  benefits  which  she  re- 
ceivedl  Yes,  Sir;  she  did  receive  the  fruits  of  these  solemn  con- 
tracts ;  by  the  establishing  of  peace  and  additions  to  her  territories,  in 
1791  ;  by  the  cessions  of  1798,  1804,  1805,  1806,  1807,  1816,  1817, 
and  1819.  And  shall  we  be  told  that  because  it  was  for  her  interest  to 
be  silent,  because  she  was  receiving  the  consideration  of  the  compacts, 
therefore  she  now,  after  20  years  assent,  is  under  no  obligation  to  abide 
by  them  ? 


14 

The  Hod.  Chairman,  in  his  opening  speech,  assigned  several  rea* 
sons  wh)'  the  United  States  could  not  constitutionally  form  such  trea- 
ties. The  first  was  that  "  the  creature  could  not  possess  power  to  de- 
stroy its  creator."  This  expression  is  calculated  to  mislead  the  judg- 
ment, because  it  refers  the  mind  at  once  to  the  relation,  in  which  we 
frail  and  feeble  mortals  stand  to  our  Omnipotent  Maker  ;  and  it  would 
seem  to  he  just  as  true  to  say — the  creature  cannot  diminish  the  power 
of  its  creator.  The  gentleman  applies  it  to  the  General  Government, 
as  the  work  of  the  several  States.  Is  it  true  that  it  cannot — that  it 
does  not  take  any  power  from  its  several  members  ?  The  argument  is, 
that  if  the  Union  can  secure  to  the  Indians,  any  portion  of  their  territory 
by  tipn'y,  they  may  cede  away  a  whole  State.  This  would  indeed,  as 
the  gentleman  must  admit,  be  a  gross  and  palpable  abuse  of  the  authority. 
His  reasoning  then  must  be,  that  the  United  States  cannot  possess  any 
power  which,  by  perversion,  may  be  exerted  to  the  destruc'ion  of  one 
of  Its  members.  Can  they,  then,  make  any  treaty  with  a  foreign  nation  ?  If 
so  there  is  the  same  danger  of  wrongfully  transferring  a  State.  Can  they 
make  war  ?  It  would  be  the  readiest  means  of  lopping  off  a  member  by 
leaving  it  defenceless.  Can  they  organize,  discipline,  and  call  forth  the 
tnilitia.  and  control  the  whole  physical  fetrength  ?  Sir,  these  are  powers 
expressly  inserted  in  the  Constitution,  and  they  are  not  to  be  argued 
out  of  it,  by  apprehensions  of  extravagant  possible  abuses. 

The  General  Government  was  formed  by  the  States — and  the  crea- 
ture, says  the  gentleman,  cannot  have  power  to  destroy  any  one  of 
its  creators.  The  State  Governments,  Sir,  were  formed  by  individuals. 
If  any  of  ihese  should  be  guilty  of  a  capital  offence,  might  he  not  say 
in  the  language  of  the  Chairman,  you  cannot  take  my  life — it  is  impos- 
sible in  the  nature  of  things  that  the  creature  can  have  power  to  destroy 
one  of  its  creators 

It  is  argued  that  the  existence  of  an  Indian  community,  within  the  char- 
tered limits  of  a  State,  is  inconsisieut  with  "  a  Republican  form  of  Gov- 
ernmeiU^''''  as  guarantied,  by  the  Constitution,  to  every  State. 

This  argument  has  been  much  relied  on.  It  was  advanced  by  the  Se- 
cretary of  War,  repeated  by  the  Committee,  and  reiterated  in  the  speech 
of  the  Chairman.  If  this  be  so,  Mr.  President,  a  most  unexpected  result 
follows  ;  it  is — that  Georgia  has  never  yet  nad  a  republican  form  of  Gov- 
ernment— for  there  has  never  been  a  momenr,  when  such  tribes  did  not 
exist  within  her  borders.  At  the  time  of  the  adoption  of  the  Constitu- 
tion, this  same  Cherokee  nation  was  much  more  numerous,  and  held 
sway  over  a  much  wider  region  than  at  the  present  time.  Nay  the  Con- 
stitution itself  confirms  the  pre-existing  treaty  of  Hopewell,  which  re- 
cognised and  guarantied  the  separate  existence  of  the  tribe  ;  and  which 
is  now  contended  to  be  incompatible  with  that  fundamental  compact. 
Is  the  existence  of  a  body  politic,  which  the  Legislature  cannot  destroy, 
necessarily  incompatible  with  a  Republican  form  of  Government  ? 
How  is  it  with  Dartmouth  College,  in  New  Hampshire,  or  the  char- 
tered cities  of  other  States  ? 

Another  proposition  derived  from  the  same  elevated  source,  and  urged 
with  equal  vehemence  here,  is  that  these  treaties  cannot  be  valid,  be- 
cause the  Constitution  declares  that  "  no  nen>  State  shall  be  formed  or 
"erected  within  the  jurisdiction  of  any  other  State,  without  the  consent 
"  of  the  Legislature"  thereof. 


15 

Sir,  no  one  proposes  to  create  a  new  State,  but  to  continue  an  old  tribe, 
or  State,  if  you  so  please  to  denominate  it.  It  is  to  keep  faith  with  a 
poHlical  communit)'  more  ancient  than  Georgia  herself;  it  is  to  preserve^ 
not  to  form  anew.  Here  again,  I  would  observe  that  this  nation  of 
Cherokees  was  as  much  a  State  at  the  time  of  the  adoption  of  the  Con- 
stitution as  now,  and  had  much  greater  power,  and  more  extensive 
dominion  ;  and  that  the  treaty  of  Hopewell,  which,  this  argument  insists, 
formed  a  netw  State  since  the  Constitution,  and  in  violation  thereof  was 
made  two  years  before  its  adoption,  and  was  confirmed  and  sanctioned 
by  it. 

We  are  next  told  that  the  Constitution  recognises  the  right  of  the  re- 
spective Stale  Legislatures  to  pass  their  laws  over,  and  annihilate  these 
communities,  by  that  clause  in  the  first  article,  which  provides  that  an 
enumeration  of  inhabitants  as  a  basis  of  representation  shall  be  made, 
•'  excluding  Indians  not  taxed." 

This  provision  undoubtedly  implies  that  there  could  be  individual  In- 
dians subject  to  taxation,  and  therefore  to  be  counted  ;  it  also  expressly 
declares  that  there  might  be  those  within  a  State,  "not  taxed." 

There  may  have  been,  nay  there  were,  in  some  of  the  States,  indi- 
vidual natives  voluntarily  residing  within  the  white  settlemt  nts,  separate 
from  any  tribe,  and  freely  subjecting  themselves  to  the  local  laws.  There 
were  those  too  whose  nation,  as  a  body,  had  disappeared ;  and  because 
these  persons  had,  ot  their  own  accord,  thus  sought  the  State  jurisdiction, 
does  it  follow  that  it  could  be  extended  over  Indian  nations,  who  had 
always  resisted  it,  and  with  whom,  at  the  moment  this  clause  was  writ- 
ten, and  the  Constitution  formed,  the  United  States  had  a  treaty  guaranty- 
ing them  against  such  taxation,  and  every  other  exercise  of  State  authority 
over  them  ?  By  what  imaginable  process  could  these  words,  "  Indians 
not  taxed,"  produce  the  magical  effect  of  annulling  the  treaty  of  Hope- 
well, then  existing  in  full  force  ' 

Let  us  substitute  the  word,  aliens,  for  Indians.  The  clause  would  then 
exclude  "  aliens  not  taxed."  Will  it  be  contended  that  foreigners  ex- 
isting as  a  nation,  with  whom  we  had  treaties,  as  such,  would  be  subject 
to  the  laws  of  a  State  ?  Would  it  not  apply  exclusively  to  the  aliens, 
who  had  separated  themselves  from  their  nation  and  mingled  with  our 
citizens  ? 

As  a  last  resort,  and  to  me,  Mr.  President,  it  seems  a  desperate  one, 
it  has  been  earnestly  contended  by  the  gentlemen  from  Tennessee, 
Alabama,  and  Georgia,  (Messrs.  White,  McKinley  and  Forsyth,)  that  we 
cannot  constitutionally  make  any  treaty,  with  any  Indian  nation,  within 
the  United  States — that  the  express  power  to  make  "  treaties"  does  not 
embrace  compacts  or  agreements  with  such  communities. 

Wherever,  Sir,  the  relation  of  peace  and  war  can  exist,  the  United 
States  must  of  necessity,  possess  the  right  to  make  a  treaty  of  peace. 
That  this  relation  may  exist  with  these  native  tribes  has  never  yet  been 
doubled,  and  will  not  at  this  day  be  questioned.  No  one  will  have  the 
assurance,  in  the  lace  of  all  history,  in  defiance  of  what  is  known  by  the 
whole  world,  to  declare  that  our  contests  with  the  aboriginal  nations  are 
on  their  part  insurrections,  rebellions  subjecting  them  to  be  tried  and 
executed  as  traitors  The  Secretary  of  War  will  not  say  so,  for  he  told 
the  Cherokees,  in  April  last,  "  your  people  were  at  enmity  with  the 
*•  United  States,  and  waged  a  war  upon  our  frontier  settlements  :  a 


16 

"durable  peace  was  not  entered  into  with  you  until  1791."  The  Com- 
mittee and  its  Chairman  (Mr.  White)  will  not  tell  us  so,  for  their  re- 
port, accompanying  this  bill,  declares  that  the  Cherokees  waged  "  a  war 
"■  against  the  citizens  ot'  these  States,  prior  to  the  treaty  of  Holsten,  in 
*'  1791" — Rebellion  ! — by  those  who  never  owed  allegiance,  and  with 
whom,  ever  since  our  national  existence,  we  have  either  had  open  war 
or  subsisting  treaties ! 

But  independent  of  this  power  of  peace  and  war,  why  does  not  the 
general  authority  to  make  treaties,  embrace  those  with  the  Indians  ? 
Gentlemen  content  themselves  with  a  positive  and  earnest  denial. 

The  word  treaties,  say  they,  in  the  Constitution  does  not  mean  com- 
pacts or  contracts  with  Indian  tribes.  Why  not  ?  Did  not  those  who 
formed  and  adopted  the  Constitution  so  understand  it  ?  To  answer  this 
question  we  must  ascertain  how  that  word  was  used,  and  what  were 
the  ideas  attached  to  it,  at  the  time  and  anterior  to  its  insertion  in  that 
instrument.  This  rule  of  construction  is  the  foundation  of  all  science. 
When  any  term  is  used  by  an  author  it  is  understood  to  carry  with  it 
the  ideas  which  he  has  previously  affixed  to  it  ;  that  he  denotes  by  it 
what  he  always  has  done.  Hence,  in  the  science  of  law,  when  the 
student  has  ascertained  what  a  writer  means  by  the  words  fee  simple,  or 
larceny,  if  he  subsequently  finds  those  words  used  by  the  same  author 
he  attaches  to  them  the  same  meaning. 

These  contracts  with  aboriginal  communities  have  been  denominated 
treaties  from  the  first  settlement  of  this  country.  It  has  been  their  pe- 
culiar and  appropriate  name,  without  even  an  alias  dictus.  Great  Bri- 
tain made  treaties  with  the  Indians;  the  several  colonies  formed  many,  and 
gave  them  the  same  appellation  The  Continental  Congress  from  the 
time  it  first  assembled,  until  it  was  merged  in  the  present  national  Go- 
vernment, uniformly  called  them  treaties.  They  did  so  in  1775,  1776, 
1778,  1783,  1784,  1785,  1786,  1787,  1788,  and  even  to  the  day  of  the 
formation  and  adoption  of  the  Constitution.  We  find  them  repeatedly 
and  particularly  mentioned  in  July,  August  and  October,  1787  ;  the  Con- 
stitution being  formed  in  September  of  the  same  )'ear. 

Nor  is  this  all.  In  the  articles  of  Confederation,  power  was  given 
to  make  treaties.  It  had  been  repeatedly  exercised  in  establishing  our  re- 
lations with  Indians  tribes  ;  particularly  the  Delawares,  the  Six  Nations, 
the  Cherokees,  the  Choctaws,  the  Chickasaws,  and  the  Shawnees  ; 
and  on  the  first  of  September,  1 778,  was  issued  the  proclamation  of  Con- 
gress and  of  General  Washington  to  enforce  the  treaty  of  Hopewell. 

The  word  treaties,  thus  invariably  known  and  used,  and  which  had 
received  a  practical  construction  under  the  Confederation,  was  inserted 
by  the  same  great  men  in  the  Constitution  of  the  United  States.  Could 
any  one  doubt  its  meaning  ?  Did  Georgia  misunderstand  it  ?  She  had 
herself  made  treaties  with  all  the  forms  of  negotiation,  through  commis- 
sioners fully  empowered,  in  1773,  1783  and  1785,  they  were  so  denom- 
inated by  her  at  the  time  and  ever  afterwards.  On  the  3d  of  August, 
1787,  a  motion  was  made  by  Mr.  Few,  delegate  in  Congress,  from  Geor- 
gia, seconded  by  Mr  Blount  from  North  Carolina,  to  take  measures  to 
"  explain  and  confirm  all  former  treaties"  with  the  Creek  Indians. 

There  is  as  much  evidence  that  this  word  was  intended  to  embrace 
conventions  with  such  communities  as  the  Creeks  or  Cherokees,  as  those 
with  transatlantic  nations,  such  as  France  and  Spain. 


Contemporary  exposition  has  always  been  deemed  oi  great  forc£ 
m  settling  even  the  most  difficult  questions  of  constitutional  law.  Prac- 
tice and  precedent  too  have  often  been  considered  as  decisive  authority. 
Mr.  Madison,  who  has,  with  so  much  justice,  been  denominated  the  great 
constitutional  lavvyer  of  this  country,  declared  in  a  message  to  Congress, 
that  the  question  of  the  constitutionality  of  the  Bank  of  the  United 
States,  had  been  so  settled  by  the  sanction  of  the  different  departments 
of  the  Governnaent,  that  it  was  no  longer  to  be  agitated;  and  vet  only  one 
b-ank  had  then  been  chartered  If  his  argument  had,  in  that  instance, 
any  force,  it  is  here  irresistible. 

From  the  organization  of  the  Government,  down  to  this  very  session 
of  Congress,  the  practice  has  been  unbroken  and  invariable.  We  find 
these  treaties  made  in  1789,  1790,  1791,  1792,  1794,  1795,  1796,  1797, 
1798,  and  almost,  if  not  quite,  every  year  since.  I  have  counted  no 
less  than  one  hundred  and  twenty-four  Indian  treaties  formed  under  the 
present  Constitution,  being  more  than  three  for  each  year.  If  authority 
and  practice  can  settle  any  question,  this  is  at  an  end. 

In  1790,  General  Washington  delivered  a  speech  to  the  Seneka  In- 
dians, some  extracts  from  which  I  will  now  read  : 

I,  the  President  of  the  United  States  by  my  own  mouth,  and  by  a  written  speech 
signed  with  my  own  hand  and  sealed  with  the  seal  of  the  United  Stales,  Speak  to  the 
Seiieka  nation. 

The  general  Government  only  has  the  power  to  treat  with  the  Indian  nations,  and 
any  treaty  formed  and  held  without  its  authority,  will  not  be  bindiug. 

Here  then  is  the  security  for  the  remainder  of  your  lands.  No  state  nfer  person 
can  purchase  your  lands,  unless  at  some  public  treaty  held  under  the  authority  of 
the  United  Slates.  The  General  Government  will  never  consent  to  your  being  de- 
frauded ;  but  it  will  protect  you  in  all  your  just  rights. 

Hear  well,  and  let  it  be  heard  by  every  person  in  your  nation,  that  the  President 
of  the  United  States  declares,  that  the  General  Government  considers  itself  bound  to 
to  protect  you  in  all  the  lands  secured  to  you  by  the  treaty  of  Fort  Stanwix,  the  22d 
of  October,  1784,  excepting  such  parts  as  you  may  since  have  fairly  sold  to  persons 
properly  authorized  to  purchase  of  you. 

Again — 

But  your  "great  object  seems  to  be  the  security  of  your  remaining  lands,  and  I 
have  therefoie  upon  this  point  meant  to  be  sufficiently  strong  and  clear. 

That  in  future  you  cannot  be  defrauded  of  your  lands.  Tl^at  you  possess  Ihe  right 
to  sell,  and  the  right  of  refusing  to  sell  your  lands. 

That  therefore  the  sale  of  your  lands  in  future  will  depend  entirely  upon  youf' 
selves. 

But  that  when  you  may  find  it  for  youi  interest,  to  sell  any  parts  of  your  lands, 
{he  United  States  musi  ba  present  by  their  Jigent,  and  will  be  your  secwri/j/,  that 
you  shall  not  be  defrauded  in  the  bargain  you  shall  make. 

You  now  know  that  all  the  lands  secured  to  you  by  the  Treaty  of  Fort  Stanwix, 
excepting  such  parts  as  you  may  since  have  fairly  sold,  are  yours,  and  that  only 
your  own  acts  can  convey  them  away.  Speak  therefore  your  wishes  on  the  subject 
of  tilling  the  ground.  The  United  States  will  be  happy  to  afford  you  eveiy  assist- 
ance in  the  only  business  which  will  add  to  your  numbers  and  happiness. 

The  United  States  will  be  true  and  faithful  to  their  engagements. 
Given  at  Philadelphia,  29th  December,  1790, 

GEORGE  WASHINGTON- 

By  the  President: 

Thomas  Jefferson. 
By  command  of  the  President  of) 
the  United  States  of  America —  S 

H.  Knox,  Secretary  for  tht  Department  of  War, 
3 


18 

"  The  United  States  will  be  true  and  faithful  to  their  engagements.^" 
Such  was  the  solemn  declaration  of  the  Father  of  his  Country  in  the  in- 
fancy of  this  Republic.  Heaven  grant  that  his  sacred  promises  may  be 
kept  and  his  confident  prediction  veritied.  The  question  is  now  before 
us.  No  sophistry  can  evade,  no  ingenuity  can  elude  it.  Will  "  the 
"  United  States  be  true  and  faithful  to  their  engagements,"  or  false  and 
treacherous  ? 

The  Cherokees  present  this  solemn  interrogatory,  and  we  must  re- 
turn a  deliberate  response.  It  seems  almost,  as  if  their  case  had  been 
formed  for  the  purpose  of  determining  whether  it  be  possible  to  bind 
this  nation  by  its  plighted  faith. 

I  have  already  referred  to  our  repeated  and  reiterated  engagements 
by  the  sages  of  the  Revolution,  m  the  Congress  of  1785  ;  by  VVashing- 
ton  and  the  constellation  of  brilliant  names  around  him,  in  1791, 1792, 
and  1794  ;  by  the  elder  Adams  and  his  Cabinet  in  1798  ;  by  Mr.  Jeffer- 
son, in  four  successive  treaties,  in  1804,  1805,  1806,  and  1807  ;  by  Mr. 
Madison,  in  several  formed  in  1816  ;  by  Mr.  Monroe,  in  1817,  General 
Jackson  himself  subscribing  it  with  his  own  hand  as  commissioner;  and  by 
another  in  1819,  to  which  Mr.  Calhoun  affixed  his  name,  as  negotiator. 
All  these  treaties  were  ratified  by  the  Senate,  and  sanctioned  by  every  de- 
partment of  the  Government. 

In  1794,  that  greatest  and  best  of  men,  whose  name  we  profess  so 
much  to  venerate,  and  which  should  be,  of  all  others,  the  highest  au- 
thority to  this  Senate  and  to  the  nation,  delivered  a  speech  to  the  Chiefs 
and  Warriors  of  the  CnEnoKEE  nation,  in  which  speaking  of  the  lands 
upon  Cumberland,  he  says:  "  These  have  been  confirmed  by  two  trea- 
"  ties  of  Hopewell,  in  178S,  and  Holsten  in  1791  "  Again — "  The  trea- 
"  ties  which  have  been  made  cannot  be  altered.  The  boundaries 
*' which  have  been  mentioned  must  be  marked  and  established,  so 
"  that  no  dispute  shall  happen  or  amj  m-kite  people  cross  over  it.^' 

In  1795,  the  Governor  of  Tennessee  upon  which  State  it  is  now  as- 
serted these  treaties  are  not  obligatory,  wrote  a  letter  to  President  Wash- 
ington, in  order  to  "  prevent  infractions  of  them,"  by  encroachments 
upon  the  lands  of  the  Indians.  And  as  late  as  1824,  the  Gentleman  from 
Tennessee,  who  reported  this  bill,  (Mr.  White)  gave  an  able  and  elab- 
orate opinion  in  writing,  in  which  he  strenuously  asserts  and  maintains 
their  validity  and  the  rights  of  the  Indians.  He  says  "the  Cherokee? 
"  are  to  be  considered  as  a  nation,  a  community  having  a  country  dis- 
"  tinctly  marked  out,  and  set  apart  for  their  use  ;  that  their  interest  is 
"  as  permanent  and  fixed  in  it,  as  the  pledge  and  the  faith  of  the  United 
*'  States  can  make  it ;  inasmuch  as  they  have  solemnly  guarantied  it  to 
♦'  them  as  a  nation,  without  any  limitation  of  time.''  With  reference 
to  the  treaty  of  Holsten,  he  says  they  are  "  to  be  vievved  as  a  nation  pos- 
'*  sessingall  the  powers  of  other  independent  nations,  which  are  not  ex- 
"  pressly  or  by  necessary  implication,  surrendered  up  by  that  treaty." 
And  again,  "  they  have  not  surrendered  the  power  of  making  munici- 
pal regulations  for  their  own  internal  government." 

But  now  that  we,  the  United  States,  are  called  upon  to  "be  true  and 
faithful  to  these  engagements,"  it  is  contended  that  they  are  not  obliga- 
tory ;  and,  in  order  to  sustain  that  position,  it  is  insisted  that  the  Consti- 
tution gives  no  power  to  make  treaties  with  Indian  nations,  within  the 


19 

Unitetl  States.  Although,  every  President  of  the  United  States  and 
the  members  ot'  his  Cabinet,  every  Administration  and  all  the  great, 
men  by  whom  it  was  surrounded  and  sustained,  have  formed  and  esta- 
blished such  Indian  treaties. 

Every  Senate  of  the  United  States,  and  I  believe,  every  member  of 
every  Senate  have  ratified  and  confirmed  such  Indian  treaties.  Every 
House  of  Representatives  of  the  United  States,  and  I  believe,  every 
member  thereof,  have  affirmed  and  sanctioned  them,  by  passing  laws  for 
their  due  execution,  paying  from  year  to  year  the  annuities  secured  by 
them,  and  making  appropriations  to  enable  the  President  to  hold  others. 
At  this  very  session,  the  Senate  has  ratified  new  treaties;  and  during  the 
present  month,  we  have  made  an  appropriation  to  enable  the  President 
lo  form  another,  with  the  tribes  in  Indiana.  While  that  bill  was  un- 
der discussion  an  amendment  was  proposed,  prohibiting  the  use  of  any 
part  of  the  money  therein  granted,  in  secret  presents  to  the  Chiefs;  and 
it  was  insisted  by  the  gentlemen  from  Tennessee,  Louisiana,  and  Illinois, 
(Messrs.  Grundy,  Livingston,  and  Kane)  that  such  a  proviso,  merely  re- 
stricting the  use  of  money  which  Congress  was  granting,  vvould  trench 
upon  the  high,  independent,  constitutional  power  of  the  President  in  ne- 
gotiating treaties.  Nay,  the  second  section  of  the  bill  now  under  con- 
sideration, provides  for  the  removal  of  "  any  tribe  or  nation  of  Indiana, 
now  residing  within  the  limits  of  any  of  the  States  or  territories,  and 
with  which  the  United  States  have  existing  treaties," — and  now  we  are 
told,  by  the  chairman,  that  such  treaties  cannot  exist — that  they  are  no 
treaties. 

It  is  in  effect  asserted,  that  every  President  and  every  Senate,  have 
been  guilty  of  usurpation,  in  extending  the  treaty-making  power  be- 
yond its  legitimate  objects.  For  if  these  contracts  are  not  treaties, 
within  the  true  meaning  of  the  constitution,  they  could  be  made  only  by 
the  authority  of  Congress.  But  the  President  and  Senate  alone — the 
treaty-making  power — have  always  negotiated  them,  ratified  them,  and 
by  proclamation  announced  them  to  the  nation,  as  the  supreme  law  of 
the  land.  Every  Stale  legislature,  and  the  whole  people,  have  heard 
these  annunciations,  and  looked  on,  during  all  these  proceedings,  in  si- 
lent acquiescence. 

Even  in  1798,  when  all  the  acts  of  the  General  Government,  and  par- 
ticularly those  of  the  executive,  were  scrutinized  with  the  utmost  rigour, 
it  was  never  suggested  even  in  Virginia,  where  the  discussions  were  most 
animated,  that  there  had,  in  this  respect,  been  any  irregularity.  But  now, 
upon  the  pressure  of  an  exigency,  it  ig  discovered  for  the  first  time, 
that  all  has  been  wrong.  The  present  occasion  has  brought  with  it 
new  and  peculiar  lights,  by  which  gentlemen  now  perceive  what  vvas 
in  the  minds  and  intentions  of  the  framers  of  the  Constitution,  better 
than  they  did  themselves.  They  were  ignorant  of  their  own  work. — 
The  venerated  fathers  of  the  Republic,  and  all  the  high  and  honoured 
names,  who  have  presided  over  its  destinies,  have  been  involved  in 
deep  darkness,  and  wandered  in  gross  error  ! 

I  have  thus,  Mr.  President,  endeavoured  to  present  my  views  with  res- 
pect to  the  claims  of  the  State  of  Georgia.  Whether  we  regard  original 
principles  of  international  law,  as  applicable  to  the  right  of  discovery — 
or  the  express  powers  conferred  by  the  articles  of  Confederation— or 


20 

iiie  confirmation  of  pre-existing  treaties,  by  the  adoption  of  the  Constitu- 
tion— or  the  authority  vested  by  that  instrument  in  the  General  Govern- 
ment ;  and  the  renunciation  of  powers  by  respective  States — the  invaria- 
ble practice  and  usage  of  the  Union,  and  the  acts,  acquiescence,  and  as- 
sent of  Georgia  herself — it  is  manifest  that  we  are  bound  to  perform  our 
engagements  to  the  Indians,  and  are  under  no  incompatible  and  para- 
mount obligations  to  that  State. 

But  let  us  now,  for  the  sake  of  the  argument,  make  the  violent  supposi- 
tion, that  the  pretensions  of  Georgia  are  well  founded,  and  that  the  United 
States  cannot  rightfully  fulfil  their  stipulations  as  against  her.  In  that 
case  the  States  of  Alabama  and  Mississippi,  would  stand  on  very  differ- 
ent ground.  Their  claims  have  been  mingled  and  blended  with  those 
of  the  elder  sister,  as  if  they  were  precisely  the  same,  and  hers  have 
been  put  forward  as  the  only  subjects  ef  discussion,  when  in  truth  there 
is  a  broad  line  of  distinction,  which  ought  to  be  marked  and  remembered. 
For  the  sake  of  distinctness  and  brevity,  I  shall  speak  of  Alabama  alone. 

It  is  conceded  on  all  hands,  as  a  fundamental  proposition,  that  the  Uni- 
ted States  are  bound  to  fulfil  their  engagements  to  the  Cherokees  specifi- 
cally, except  when  prevented  by  incompatible  obligations,  prior  in 
point  of  time. 

Now,  Sir,  the  State  of  Alabama  did  not  exist  until  the  year  1819; 
when  she  voluntarily  came  into  the  Union  after  the  fifteen  treaties  with 
this  nation,  had  been  previously  established  and  proclaimed  as  the 
supreme  law  of  the  land. 

But  it  is  said  that  Alabama  was  formed  from  territory  once  belonging 
to  Georgia,  and  succeeded  to  all  her  rights.  Without  stopping  to  examine 
the  difficulties  attending  such  a  supposed  transmission  of  a  right  to  re- 
sist treaties  ;  it  is  sufficient  to  say  that  by  the  compact  of  1802,  Geor- 
gia ceded  to  the  United  States  all  her  "  right,  title,  and  claim"  "  to 
the  jurisdiction  and  soil"  of  all  the  territory  now  constituting  Alabama 
and  Mississippi.  The  whole  right  of  Georgia,  whatever  it  was,  thus  be- 
came vested  in  the  General  Government,  and  so  remained  until  1819  ; 
during  which  time  not  less  than  eight  of  these  treaties  were  made. 
Who  could  then  contest  their  validity  ?  Are  our  treaties  valid  with 
the  nations  in  Florida,  Arkansas  and  Michigan  ?  Can  we  enter  into 
engagements  with  any  tribes  within  the  boundaries  of  the  United  States, 
—even  beyond  the  Rocky  Mountains,  or  any  where  upon  this  conti- 
nent ?  Can  we  make  the  solemn  guarantee  proposed  by  this  bill  ? — if 
so,  we  are  legally  constrained  by  our  promises  to  the  Indians  of  Alabama 
made  before  the  existence  of  that  State. 

Bui  this  is  not  all.  Still  another  insuperable  difficulty  presents  itseif 
to  her  claims  to  legislate  over  and  destroy  the  Indian  nations. 

The  following  Article  is  a  part  of  the  fundamental  law  to  which  Alaba- 
ma owes  her  being,  and  without  which  she  cannot  exist :  "  The  utmost 
"  good  faith  shall  always  be  observed  towards  the  Indians  ;  their  lands 
*'  and  property  shall  never  be  taken  from  them  without  their  consent: 
"  and  in  their  property^  rights,  and  liberty,  they  never  shall  be  invaded 
"  or  disturbed,  unless  in  just  and  lawful  wars  authorized  by  Congress ; 
"  but  laws  founded  in  justice  and  humanity  shall,  from  time  to  time 
"  be  made  for  preventing  wrongs  being  done  to  them,  and  for  preserving 
^^  peace  and  friendship  with  them.''  This  was  originally  a  part  of  the  4th 


21 

Article  of  th'e  Ordinance  respecting  the  North  Western  Territory,  and 
was  by  express  reference  incorporated  into  the  1st  article  of  the  com- 
pact of  1802.  and  made  a  fundamental  and  perpetual  coTidition  in  the 
Act  of  Congress   which  provided  for  the  admission  of  Alabama. 

What  is  the  answer  to  all  this  ?  We  have  it  from  the  gentleman  from 
Alabama  (Mr.  M'Kinley.)  The  compact  of  1802,  says  he,  was  uncon- 
stitutional }  Georgia  could  not  transfer  to  the  United  States  either  soil 
or  jurisdiction. 

If  this  be  so,  the  first  consequence  is,  that  the  dispute  between  that 
State  and  the  General  Government,  respecting  the  bwnership  of  the 
crown  lands  obtained  by  conquest,  which  that  compact  was  supposed 
to  have  happily  put  to  rest  forever,  by  mutual  and  reciprocal  cessions — 
could  never  be  settled  ! 

In  the  next  place — that  the  combined  powers  of  the  State  and  of  the 
Union,  cannot  do  that,  under  the  constitution,  which  the  members  indi- 
vidually, might  have  done  without  the  constitution.  It  is  an  attribute  of 
complete  sovereignty  to  be  able  to  convey  and  receive  territory.  It  is 
insisted  that  this  attribute,  as  between  the  States,  is  annihilated — al- 
though all  powers  not  granted  are  reserved  to  the  members.  I  vvill  not 
say  that  such  an  effect  could  not  be  produced  by  the  Constitution,  but  it 
is  at  least  so  extremely  improbable,  that  those  who  contend  for  it,  in  any 
particular  instance,  should  be  required  to  show  it  clearly,  which  has 
not  been  done. 

It  is  msisted  by  the  gentleman  that  no  State  can  be  subject  to  the  re- 
straining condition  of  the  Ordinance  referred  to,  because  it  is  inconsist- 
ent with  her  constitutional  equality  with  the  other  members  of  the 
Union. 

That  Ordinance  was  established  in  July,  1787.  It  declares  that, 
"The  following  articles  shall  be  considered  as  articles  of  compact,  be- 
"■  tween  the  original  States,  and  the  people  and  states  of  said  territory,  and 
*' forever  remain  unalterable,  unless  by  common  consent."  Then  suc- 
ceeds an  article  embracing  the  clause  before  read  and  which  was  incor- 
porated into  the  compact  of  1802.  The  Ordinance  subsequently  declares 
that,  "The  said  Territory,  and  the  States,  which  may  be  formed  therein 
'•  shall  forever  remain  a  part  of  this  Confederacy." 

This  Ordinance  and  all  its  provisions  was  affirmed  and  established  by 
the  adoption  of  the  Constitution,  and  thus  that  instrument  itself  contem- 
plated that  all  the  Slates,  to  be  thereafter  formed  North  West  of  the  Ohio, 
should  be  forever  subject  to  those  conditions;  by  which  it  is  now  contend- 
ed, no  one  could  ever  be  constitutionally  restrained  ! 

It  is  insisted  by  the  gentleman  from  Alabama  (Mr.  M'Kinley)  that 
Georgia  could  aot  transfer  soil  and  jurisdiction  to  the  United  Stales;  that 
the  compact  of  1802,  attempting  to  do  so  was  unconstitutional  and  void; 
and  that  the  tract  of  country,  which  it  was  intended  to  convey,  remained 
a  part  of  that  State  until  the  year  1819. 

If  the  Gentleman's  doctrine  is  corrject,  it  remains  so  still ;  she  having 
never  conveyed  it. 

Another  consequence,  Mr.  President,  would  flow  from  this  doctrine, 
which  I  should  exceedingly  deplore;  it  is, Sir,  that  .3/a6ama  is  not  a  mem- 
ber of  this  Union!  By  the  Constitution  no  new  State  can  be  formed  or  ad- 
iqitted  into  the  Union  within  the  limits  of  an  old  one,  without  the  consent 


22 

of  the  latter.  Now,  Sir,  Georgia  has  never  consentetl  to  the  admission 
of  Alabama,  except  by  the  transfer  of  soil  and  jurisdiction  by  virtue  of 
the  compact  of  1802.  If  that  conveyance  was  inoperative  no  consent 
has  been  given.  If  that  compact  was  absolutely  void,  as  the  gentleman 
contends,  it  is  a  legal  nullity,  and  he  can  hold  no  rights  under  it. 

Congress,  too,  have  never  given  their  consent,  except  upon  the  basis 
of  the  binding  efficacy  of  that  compact,  and  upon  the  express  condition 
that  its  requisitions  should  be  the  fundamental  law  of  the  new  Slate. 
But,  says  the  gentleman.  Congress  had  no  power  to  pass  such  a  law.  If 
so,  the  Act  respecting  the  admission  of  Alabama  was  unconstitutional  and 
void,  and  neither  created  nor  admitted  any  new  State. 

The  ingenious  gentleman  has  reasoned  so  profoundly  upon  constitu- 
tional law  that  he  has  argued  himself  and  his  colleague  out  of  their  seats 
in  this  Senate  ! — Now,  Sir,  against  this,  1  most  seriously  protest — they 
cannot  be  spared — we  need  the  aid  of  their  talents  and  experience. 

How  will  the  gentleman  escape  from  the  consequences  which  I  have 
deduced  ?  Will  he  contend  that  the  compact  and  the  law  were  valid  and 
invalid  at  the  same  time  ?  That  they  conferred  rights  but  could  not  im- 
pose obligations  upon  his  State  ?  Even  if  such  an  extraordinary  position 
were  assumed — how  would  it  affect  the  present  question  ?  If  he  can 
infuse  any  degree  of  vitality  into  that  which  was  dead  before  its  birth, 
if  he  can  make  that  compact  efficacious  as  the  consent  of  Georgia  to  Al- 
abama's becoming  a  State,  would  it  not  also  be  effectual  as  her  consent 
that  the  United  States  should  exercise  jurisdiction  over  the  territory  so 
far  as  to  make  treaties  with  the  Indian  tribes?  If  then  the  gentleman 
will  admit  that  Georgia  assented  to  any  thmg,  by  virtue  of  that  compact, 
she  consented  to  the  formation  of  these  treaties,  and  thus  they  were  va- 
lid by  her  authority  before  Alabama  was  brought  into  being. 

As  a  dernier  resort,  the  gentleman  insists  that  the  true  construction  of 
the  language  of  the  Ordinance  gives  all  the  right  over  the  Indians  for 
which  his  State  contends,  because  the  latter  clause  requires  that  "  laws'* 
— "  shall  from  time  to  time  be  made  for  preventins.  rvrongs  being  done  (o 
"  them,  and  for  preserving  peace  and  friendship  with  them  " 

That  is,  laws  restraining  the  whites,  our  own  citizens,  from  encroach- 
ing upon  the  natives  and  thereby  endangering  the  public  tranquillity. 
If  Maine  or  New  York  should  pass  laws  for  "  preventing  wrongs  be- 
*'  ing  done  to"  the  Canadians,  "  and  for  preserving  peace  and  friendship 
"with  them" — would  that  give  jurisdiction  over  the  British  provinces  ? 
But  let  us  read  the  whole  clause,  the  true  construction  of  which  confers 
this  unlimited  power. 

"The  utmost  good  faith  shall  always  be  observed  toward  the  Indians;" 
— which  means  that  we  may  violate  all  our  engagements  at  pleasure  ! — 
"  Iheir  lands  and  property  shall  never  be  taken  from  them  without 
*'  their  consent;" — that  is,  both  may  be  taken  by  violence  against  their 
utmost  resistance  ! — "  in  their  property,  rights,  and  liberty  they  s^iall 
"  never  be  invaded  or  disturbed  unless  in  just  and  lawful  wars  authori- 
"  zed  by  Congress."  There  shall  be  laws  for  "preventing  wrongs  being 
"  done  to  them  and  for  preserving  peace  and  friendship  with  them;" — the 
true  construction  of  all  which  is — that  a  State  may  make  war  upon  them 
at  pleasure — deprive  them  of  their  lands — and  annihilate  their  nation  ! 
To  such  arguments  are  gentlemen  of  great  ability  compelled  to  resort  > 


23 

rhe  rights  of  the  natives,  both  natural  and  conventional  have  beeu 
strenuously  denied.  What  right  it  is  asked  have  the  Indians  to  the 
lands  they  occupy  ?  I  ask,  in  reply,  what  right  have  the  English  or  the 
French,  the  Spaniard  or  the  Russian  to  the  countries  they  inhabit  ? 

But  it  is  insisted  that  the  original  claim  of  the  natives  has  been  divest- 
ed  by  the  superior    right  of  discovery. 

I  have  already  shown  that  this  gives  no  ground  of  claim  as  against 
the  discovered,  that  it  is  a  mutual  understanding  or  conventional  ar- 
rurjgemenl  entered  into,  by  the  nations  of  Europe,  amongst  themselves, 
to  define  and  regulate  their  respective  claims  as  discoverers  in  order  to 
prevent  interference  and  contests  with  each  other,  all  agreeing  that  the 
sovereign  who  should  first  find  a  new  country  should  be  left  without 
interference  from  them  Lo  deal  with  it  and  its  inhabitants,  according  to 
his  ability  and  his  conscience. 

But,  we  are  told,  thai  graiiis  from  the  king  are  the  highest  title,  and 
have  always  been  relied  upon  as  such.  True — as  against  other  grantees 
from  the  crown,  or  against  the  government  itself;  but  not  as  to  the 
natives.  If  such  a  title  gives  any  just  claim  as  against  them,  then  they 
are  bound  to  yield  to  it :  for  to  every  right  appertains  a  corresponding 
obligation. 

Were  the  aborigines  bound  to  yield  to  such  pretensions  ?  Suppose 
that,  more  than  two  centuries  ago,  when  in  unbroken  strength  they  held 
resistless  sway  over  this  whole  western  world,  a  royal  patentee,  with  his 
handful  of  followers,  just  landed  on  these  shores,  should  have  found 
himself  in  the  midst  of  a  powerful  Indian  nation — the  council  fire  is 
lighted  up,  and  sachems  and  warriors  are  assembled  around  it — he 
presents  himself,  and  says  to  them — 

"  This  country  is  no  longer  yours.  You  must  leave  the  forests  where 
you  hunt,  and  the  valleys  where  you  live.  All  the  land  which  you  can 
see  from  the  highest  mountain  is  mine.  It  has  been  given  me  by  the 
king  of  the  white  men  across  the  waters.  Here  is  his  grant — how  can 
you  resist  so  fair  a  title  ?" 

If  they  deigned  any  other  reply  than  the  war-whoop,  their  chief  might 
say— 

"  The  Great  Spirit,  who  causeth  the  trees  to  rise  from  the  ground 
toward  the  Heavens,  and  makelh  the  rivers  to  descend  from  the  moun- 
tains to  the  valleys — who  created  the  earth  itself,  and  made  both 
the  red  man  and  the  white  man  to  dwell  thereon — gave  this  laud  to 
us  and  to  our  ancestors.  You  say  you  have  a  grant  from  your  king  be- 
yond the  waters— we  have  a  grant  from  the  King  of  kings,  who  reigns 
in  Heaven — by  this  title  our  fathers  have  held  it  for  uncounted  genera- 
tions, and  by  this  title  their  sons  will  defend  it." 

It  has  been  strenuously  argued  that  the  overtlovving  nations  of  Europe 
had  a  just  claim  to  the  occupancy  of  some  portion  of  the  vacant  lands  of 
the  aborigines  for  their  own  subsistence. 

The  excessive  population  of  China,  and  of  Holland,  have,  at  this  day, 
the  same  ground  of  claim  against  the  United  States.  May  they,  there- 
fore, drive  us  even  from  our  cities  and  villages,  and  take  all  our  ter- 
ritory by  force  I — We  permit  them  to  come  and  possess,  if  they  submit 
to  our  laws  and  pay  us  for  the  soil.  The  Indians  have  been  more  lib- 
eral, having  ceded  both  soil  and  sovereignty  to  hundreds  of  millions  of 


acres.  The  Clierok'ecs  have  no  more  to  spare  ;  they  need  the  residue 
for  themselves.  Shall  they  be  permitted  to  retain  it  ?  That  is  now  the 
question. 

To  avoid,  as  far  as  possible,  all  questionable  ground,  I  at  present  con- 
tend only  that  the  Indians  have  a  right  to  exist  as  a  community,  and  to 
possess  some  spot  of  earth  upon  which  to  sustain  that  existence.  That 
spot  IS  their  native  land.  If  they  have  no  claim  there,  they  have  no 
right  any  where.  Georgia  asserts  that  the  lands  belong  to  her — she 
must,  and  she  will  have  them — even  by  violence,  if  other  means  fail. 
This  is  a  declaration  of  a  right  to  drive  the  Cherokees  from  the  face  of 
the  earth;  for  if  she  is  not  bound  to  permit  them  to  remain,  no  nation 
or  people  are  bound  to  receive  them.  To  that  for  which  I  now  con- 
tend, the  Indians  possess  not  only  a  natural,  but  also  a  legal  and  conven- 
tional right.  These  two  grounds  of  claim  have  been  blended  and  con- 
founded. 

The  rights  which  the  United  States  have  claimed  with  respect  to  the 
territory  of  the  aborigines,  have  been  two-fold  ;  pre-emptive  and  re- 
versionary— A  right  to  purchase,  to  the  exclusion  of  all  others — And  to 
succeed  the  natives,  should  they  voluntarily  leave  the  country  or  be- 
come extinct. 

it  will  at  once  be  perceived  that  this  is  a  right  to  exclude  others  from 
interference,  but  not  to  coerce  the  Indians.  It  leaves  to  them  the  per- 
petual undisturbed  occupancy.  They  cannot  indeed  transfer  their  coun- 
try to  others — but  this  does  not  impair  their  title,  although  it  may  di- 
minish its  value  in  the  market.  It  still  belongs  to  them  and  their  heirs 
forever.  If  a  State  should,  by  law,  prohibit  its  citizens  from  making 
sale  of  their  lands  without  the  assent  of  the  Executive — would  it  destroy 
every  man's  title  ?  Nay,  the  laws  do  now  prevent  conveyances  to  aliens. 

The  right  claimed  is  merely  to  exclude  all  others  from  purchasing  of 
the  aborigines.  It  will  be  divested  of  much  of  its  appearance  of  harsh- 
ness toward  them  by  recurring  to  its  origin.  It  was  the  primitive  agree- 
ment or  mutual  unders'anding  between  exploring  nations,  that  which- 
ever should  first  find  a  new  country,  should  alone  possess  the  privilege 
of  dealing  with  the  natives;  and  upon  this  ground  the  discoverer  ex- 
cluded others  from  becoming  purchasers.  He  had  the  right  of  pre- 
emption. This  agreement  trenched  not  upon  the  title  of  the  aborigines: 
and  as  to  its  affecting  the  value  of  their  lands,  by  preventing  competition 
in  the  purchase,  there  would  have  been  no  purchaser  but  for  the 
discovery. 

There  is  no  mystery  in  the  international  law  of  discovery.  So  far  as 
it  relates  to  this  subject,  it  is  tbo  same  as  if  five  or  six  persons,  being 
about  to  go  in  search  of  sugar  lands  in  South  America,  should  mu- 
tually entTiiore  th..t  t^t  y  would  not  interfere  with  each  other  in  their  pur- 
chases.    Such  agre  .aient  would  do  no  wrong  to  the  original  owner. 

The  reversionary  claim,  as  it  may  be  denominated — although  in  strict- 
ness that  cannot  revert  to  another,  which  always  belonged  to  the  pre- 
sent possessor — is  the  necessary  consequence  of  the  exclusion  of  others 
from  purcuasing.  It  is  merely  a  right  of  succession  to  lands  of  the 
Indians  when  thpy  shall  have  become  extinct,  or  have  voluntarily  aban- 
doned them  by  emigration  ;  as  the  property  of  individuals  sometimes 
fescheats  to  the  government  for  the  wjwt  of  heirs. 


25 

The  right  of  the  Aborigines,  to  the  perpetual  antl  exclusive  occu- 
pancy of  all  their  lands,  has  been  always  recognised  and  affirmed  by  the 
United  States.  It  was  respected  by  Great  Britain  before  ihe  revolution; 
as  appears  by  the  royal  proclamation  of  1763,  in  which  all  persons  are 
commanded  "  forthwith  to  remove  themselves"  from  lands,  "which  not 
"  having  been  ceded  to  or  purchased  by  us,  are  still  reserved  to  the 
"  said  Indians  :"  and  after  reciting  that  individuals  had  practised  fraud 
upon  the  the  natives,  forbids  private  persons  from  making  purchases, 
"to  the  end  that  the  Indians  may  be  convinced  of  our  justice"  and  pro- 
vides that  if  "  the  said  Indians  should  be  inclined  to  dispose  of  the 
"  said  lands  the  same  shall  be  purchased  only  for  us,  in  our  name  at 
"some  public  meeting  or  assembly  of  the  said  Indians,  to  be  held  for 
"  that  purpose." 

That  right  was  recognised  by  the  Confederation;  as  appears  by  the 
whole  tenor  of  their  proceedings  ;  particularly  their  treaties,  by  which 
they  purchased  a  part  and  guarantied  the  remainder  ;  by  the  report  of  a 
Committee  in  August  1787,  which  declares  that  the  Indians  have 
"just  claims  to  ail  occupied  by  and  not  purchased  ofthera" — and  the 
proclamation  of  Congress  in  September  1788,  which  has  been  already 
referred  to. 

That,  under  our  present  Constitution,  the  rights  of  the  natives  and  the 
relation  in  which  they  stand  to  the  United  States  are  such  as  I  have  de- 
scribed; is  clearly  manifested — by  the  Speech  of  President  Washington 
to  the  Senakas  in  1790,  from  which  I  have  already  presented  some  ex- 
tracts— and  by  the  following  explicit  and  deliberate  letter  of  Mr  Jeffer- 
son, written  to  the  Secretary  of  War  in  1791 — '•  I  am  of  opinion  that 
"  Government  should  firmly  maintain  this  ground  ;  that  the  Indians  have  a 
"  right  to  the  occupation  of  their  lamis,  independent  of  the  States  within 
"  whose  chartered  lires  they  happen  to  be  ;  that  until  they  cede  them  by 
"  treaty  or  o'l-ver  transactions  equivalent  to  a  treaty,  no  act  of  a  State  can 
"give  a  right  to  such  lands;  that  neither  under  the  present  Constitution, 
"  nor  the  ancient  Confederation,  had  any  State,  or  persons,  a  right  to 
"  treat  with  t!ie  Indians,  without  the  consent  of  the  General  Government; 
"  that  that  consent  has  never  been  given  to  any  treaty  for  the  cession  of 
"  the  lands  in  question  ;  that  the  government  is  determined  to  exert  all 
"  its  energy  for  the  patronage  and  protection  of  the  rights  of  the  Indians, 
"  and  the  preservation  of  peace  between  the  United  States  them  ;  and 
•'  that  if  any  settlements  are  made  on  lands  not  ceded  by  them,  without 
'*  the  previous  consent  of  the  United  States,  the  government  will  think 
"  itself  bound,  not  only  to  declare  to  the  Indians  that  such  seftlemecls 
•-'  are  without  the  authority  or  protection  of  the  United  States,  but  to  re- 
*^  move  them  also  by  the  public  force.'''' — Also,  by  the  intercourse  law  of 
1790 — forbidding  all  encroachments  by  citizens  of  the  United  States. 
upon  the  "  territory  belonging  to  any  tribe  or  nation  of  Indians  ;" — by 
many  other  statutes,  particulary  that  of  March,  1805 — by  all  the  trea- 
ties of  purchase  and  cession — all  the  laws  to  carry  them  into  effect  and 
pay  the  consideration — and  all  the  acts  for  enablmg  the  Executive  to 
"extinguish  Indian  titles." 

The  Gentleman  from  Georgia  (Mr  Forsyth)  has  referred  to  the  Cor- 
respondence at  G  bent  to  sustain  his  denial  of  rights  to  the  Indian  tribes. 
He  relied  upon  the  views  of  the  American  commissioners  in  repelling 
4 


26 

the  claims  of  the  British.  As  it  is  sometimes  more  satisfactory  to  reail 
for  ourselves,  than  to  take  the  construction  of  others;  permit  me,  Sir, 
to  present  to  you  an  extract  from  that  correspondence.  "  Under  this 
•'system  the  Indians  residing  within  the  United  States  are  so  far  inde- 
«'  pendent  that  they  live  under  their  own  customs,  and  not  under  the  laws 
"  of  llie  United  States,  that  their  rights  upon  the  lands  where  they  in- 
"  habil,  or  hunt  are  sernred  to  tliera  by  boundaries  defined  in  amicable 
♦'  treaties  between  the  United  States  and  themselves — and  when  these 
♦'  boundaries  are  varied  it  is  also  by  amicable  and  voluntary  treaties  by 
"  which  ihey  receive  from  the  United  States  ample  compensation  for 
"  every  right  they  have  to  the  lands  ceded."  "  Such  is  the  relation  be- 
"  tween  them  and  the  United  States  :  that  relation  is  not  now  created 
"  for  the  first  time  nor  did  it  orieinate  with  the  treaty  of  Grenvilie." 
And  subseq-iently,  "  the  treaty  of  Grenvilie  was  merely  declaratory  of 
"  the  public  law — on  principles  previously  and  universally  recognised. 

To  this.  Sir,  was  subscribed  the  names  of  Adams  and  Gallatin,  of  Clay 
and  Bayard  and  Russell. 

The  Gentleman  from  Alabama  (Mr.  M'Kinley,)  to  show  that  the  na- 
tives had  no  title  to  the  soil,  cited  the  case  of  Johnson  and  Mcintosh, 
decided  by  the  Supreme  Court  of  the  United  States,  and  reported  in  the 
8th  of  VVheaton. 

To  see  how  precisely  that  case  sustains  my  positions,  let  me  read  a 
few  very  short  extracts  from  the  opinion  of  the  Court  as  delivered  by 
Chief  Justice  Marshall.  It  declares  that  the  right  of  the  United  States, 
or  the  several  States,  is  "subject  to  the  Indian  right  of  occupancy.'" 
"That,  the  original  Inhabitants  are  the  rightful  occupants  of  the  soil, 
*'  with  a  legal  as  K'ell  as  a  just  claim  to  retain  possesaon  of  it,  and  to  use 
*'  it  according  to  their  onti  discretion/^  And  again,  "  it  has  7iever  been 
"  contended  that  the  Indian  title  amounted  to  nothing.  Their  right  of 
*'  possession  has  never  been  questioned.^' 

Georgia  herself  has  recognised  those  established  rights  of  the  natives, 
and  the  relation  they  bear  to  the  General  Government. 

Bv  a  law,  pa*sed  in  1  796,  respecting  the  vacant  lands  within  her  char- 
terv'd  limits,  she  held  the  following  language  :  "  the  territory  therein 
"  mentioned  is  hereby  declared  to  be  the  sole  property  of  the  State,  suh- 
'"'■ject  only  to  the  right  of  ireaty  of  the  United  States,  to  enable  the  State 
"  io  purchase  under  its  pre-emption  right  the  Indian  title  to  the  same." — 
A  most  pregnant  act  of  legislation.  It  expressly  admits  "  the  Indiaa 
"title'' — that  the  claim  of  the  State  is  only  "to  purchase"  under  its 
pre-empti'  n  "right" — that  even  this  she  could  not  do,  unless  "enabled" 
by  the  United  States — that  the  United  States  had  "  the  right  of  treaty" 
with  the  Indians  ;  and  that  the  claims  of  Georgia  were  "subject  to"  that 
right. 

In  the  compact  of  1 802,  she  stipulated,  by  reference  to  an  Article  of  the 
Ordinance  before  mentioned,  for  the  inviolability  of  the  lands,  property, 
rights  and  liberty  of  the  Indians,  upon  the  territory  relinquished  :  and 
recognised  their  just  claim  to  lands,  in  that  which  was  retained,  by  the 
Article  which  binds  the  United  States  "  at  their  own  expense"  to  extin- 
guish the  "  Indian  title"  thereto,  as  early  as  it  could  be  done  "peace- 
ably and  upon  reasonable  terms." 


27 

The  titles  of  thft  Acts  which  I  read,  and  several  others,  speak  of  the 
lands  therein  disposed  of  as  "acquired,"  "obtained"  from  thf;  "  Creek 
and  Cherokee  nations,"  by  the  treat-es  held  by  the  United  States 

Even  the  Act  of  December  last  contains  a  plenary  admission  that  the 
lands  in  question  were  never  before  subject  to  her  jurisdiction  A  part 
of  the  title  is  "to  extend  the  laws  of  this  State  over" — "  the  territory 
"  now  occupied  by  the  Cherokees."  The  6th  section  expressly  extends 
the  laws  of  the  State  over  the  same  and  the  inhabitants  thereof  Sir,  does 
not  the  legislation  of  every  State,  of  itself,  operate  upon  all  the  country 
within  its  jurisdiction  ?  The  laws  of  Georgia  were  not  biifoie  limited 
to  any  parts  of  the  State  ;  they  were  general — they  covered  the 
whole  ;  and,  are  now — extended  over  the  residue  ! 

We  have  heard  a  great  deal  in  this  debate  of  the  rights  of  conquest  ; 
and  are  told  that  it  is  always  recognised  as  valid  by  the  judicial  tribunals. 

True,  Sir  ,by  those  ot  the  conqueror.  How  can  they  do  otherwise  ? 
Suppose  that  Congress,  should  now  declare  a  war  for  the  sole  purpose 
of  wresting  Canada  from  Great  Britain,  and  should  succeed  ;  could  our 
own  courts  question  this  exercise  of  political  power,  and  refuse  to  sus- 
tain our  jurisdiction  over  the  country,  however  iniquitous  the  acquisi- 
tion ?  And  if  in  this  Government,  where  the  political  sovereign  is  un- 
der the  restraints  of  the  Constitution,  the  courts  cannot  interfere,  how 
could  they  in  Europe,  where  this  doctrine  had  it-*  origin  ?  There  the 
legislative  and  political  powers  are  unlimited.  Even  in  England  the 
parliament  is  legally  omnipotent  ;  and  who  ever  heard  of  a  judicial  court 
undertaking  to  annul  any  of  its  enactments  ? 

Whatever  may  be  the  acquiescence  of  other  nations  in  the  exercise 
of  power  by  a  conqueror  ;  it  is  no  ground  of  just  claim  as  against  the 
the  conquered. — They  surely  are  not  bound  to  submit,  if  new  means  of 
resistance  can  be  found. 

To  give  to  conquest — to  mere  force — the  name  of  right,  is  to  sanction 
all  the  enormities  of  avarice  and  ambition.  Alexander  and  Bonaparte 
are  justified  I — Britain  has  done  no  wrong,  in  sweeping  India  with  the 
hand  of  rapine,  and  holding  fifty  millions  of  people  in  thraldom!  AH 
the  cruelties  of  the  Spaniards  in  South  America — the  crimes  of  Pi- 
zarro  and  Cortez — tracking  the  fugitive  natives  in  terror  and  dismay 
with  blood  hounds  to  the  caves  of  the  mountains  ;  and  stretching  their 
wretched  monarch  upon  burning  coals  to  extort  from  him  the  secret  of 
his  treasures — are  sanctified  hy  the  name  of  right!  This  right  of  con- 
quest gentlemen  contend  is  the  legitimate  off«pring  of  the  right  of  disco- 
very. Sir,  the  pirates  on  the  coast  of  Barbary  and  at  Barataria  exer- 
cise both.  They  find  a  ship  alone  upon  the  ocean — this  is  discovery. 
They  capture  her  and  murder  or  enslave  the  crew — this  is  conquest. 
Both  these  rights  are  thus  combined  and  consummated  ;  and  their  valid- 
ity will  not,  I  presume,  be  questioned  either  by  the  courts  of  Barataria, 
or  other  bands  o{  similar  conquerors. 

But  even  this  miserable  argument  of  conquest  is  not  applicable  to  the 
Cherokees.  They  were  not  subjiigated.  The  Southern  Indians  had  six- 
teen thousand  warriors,  with  arms  in  their  hands.  They  were  power 
ful ;  their  trade  was  war  ;  they  did  not  solicit  peace.  We  sought  for  it, 
as  appears  by  the  resolutions  of  Congress,  of  May,  1783 — and  March, 
1785.     We  obtained  the  treaty  of  Hopewell  in  which  gentlemen  find 


28 

the  expressions,  the  "  United  States  give  peace"  to  the  Indians,  and 
"  allot  boundaries  :"  and,  by  a  philological  criticism,  upon  the  English 
terms,  which  we  used,  they  logically  deduce  the  rights  of  conquest! 
What  did  the  unlettered  Inrlian,  understand  by  those  expressions,  but 
that  there  was  to  be  an  end  of  war  ;  and  that  his  territory  was  to  be 
sacred  ?  The  treaty  contains  many  reciprocal  stipulations  of  the  "  con- 
tracting parties."  Will  it  still  be  contended  that  we  are  not  bound  by 
them  because  the  other  party  was  conquered — in  other  words  because 
we  were  the  strongest  ?  If  the  United  States  made  terms  of  peace 
should  they  not  abide  by  them  ?  If  a  be;<ieged  town  capitulates,  are 
not  the  articles  of  capitulation  obligatory  ?  When  Bonaparte  dictated 
treaties  of  peace  in  the  capitols  of  the  nations  which  he  had  over-run — 
was  he  not  morally  bound  to  observe  them  ?  They  indeed  might  com- 
plain that  the  contract  was  made  by  constraint  when  they  were  not 
free  agents  ;  but  who  ever  heard  of  the  stronger  party  claiming  to  be 
absolved  from  his  engagements,  because  the  other  was  subject  to  his 
coercion  ? 

It  has  been  repeatedly  aksed,  why  not  leave  the  Indians  to  the  legis- 
lation of  the  State  ? 

I  answer,  because  they  protest  against  it,  and  they  alone  have  the 
right  to  judge.  They  demand  of  us  the  protection,  which  we  solemnly 
promised. 

Much  has  been  said  of  their  being  untutored  savages,  as  if  that  could 
dissolve  our  treaties  !  No  one  pretends,  that  they  are  less  cultivated 
now  than  when  those  treaties  were  made.  Indeed,  it  is  certain,  that 
they  have  greatly  advanced  in  civilization  ;  we  see  it,  in  the  very  proofs 
introduced  by  the  gentleman  from  Georgia,  to  show  their  barbarism.  He 
produced  to  the  Senate,  a  printed  code  of  Cherokee  laws  ;  and  a  news- 
paper issued  from  a  Cherokee  press  !  Is  there  another  instance  of 
such  productions  from  any  Indian  nation  ?  I  was  surprised,  that  with 
all  his  scrutiny,  he  could  find  no  more  remnants  of  savage  customs.  I 
shall  not  dwell  upon  his  selections  from  their  laws.  The  tirst  was;  that 
if  a  horse  should  be  stolen;  and  the  owner,  finding  the  thief  in  posses- 
sion, should  immediately  kill  him,  in  the  excess  of  passion — it  should 
rest  upon  his  own  conscience.  It  is  to  be  observed  that  the  person  slain 
must  have  been  guilty  ;  and  for  such  an  offence,  life  is  now  taken  by 
the  laws  of  England.  But  this  provision  inserted  in  the  Cherokee  code, 
more  than  twenty  years  ago,  has  yielded  to  further  light,  and  been 
since  repealed.  Time  will  not  permit  me  to  dwell  upon  their  advances 
in  the  arts  of  civilized  life.  It  is  known  to  have  been  great.  They 
till  the  ground,  manufacture  for  themselves,  have  work-shops,  a  printing 
press,  schools,  churches,  and  a  regularly  organized  Government.  In- 
deed, the  gentleman  from  Tennessee,  himself,  told  us  that  some  indi- 
viduals of  that  nation  were  qualified  for  seats  in  this  august  assembly. 

What  danger,  it  is  asked,  have  the  Indians  to  apprehend  from  the 
laws  of  the  State  ? 

What  danger  ?  Is  it  not  here  avowed,  that  their  presence  is  a  nuis- 
ance, from  which  Georgia  wishes  to  be  relieved  ?  Has  not  her  legisla- 
ture declared,  that  she  is  determined  to  have  their  lands  at  all  hazards, 
even  by  violence,  in  the  last  resort  ?  And,  if  left  to  her  unrestrained 
power,  can  it  be  doubted  that  she  will  find  the  taeans  of  carrying  that 


29 

determination  into  effect  ?  If  the  laws  heretofore  enacted,  are  not  suffi- 
cient, may  not  others  be  resorted  to  ?  Let  us,  for  a  moment,  look  at  the 
measures  already  adopted,  and  see  if  they^  have  not  some  adaptation  to 
the   accomplishment  of  her  wishes. 

By  the  9th  section  of  the  Act  of  1828,  no  Indian  in  the  Creek  or 
Cherokee  nations,  can  be  a  party  or  a  witness  in  any  suit,  to  which  a 
white  man  may  be  a  party.  It  is  said  thai  this  has  beenrepealed  by  the 
statute  of  1829  I  think  otherwise.  The  latter  contains  no  repealing 
clause,  nor  any  incompatible  provisions.  Both  may  well  stand  logethsr, 
and  both  would  be  enforced  according  to  the  usual  construction  of  sta- 
tutes in  pari  materia.  It  is  true,  that  a  partof  the  title  of  the  act  is;  to 
repeal  that  9th  section  of  the  former.  This  is  easily  accounted  for. 
The  act,  as  first  reported  by  the  Committee,  probably  contained  a  re- 
pealing clause — which  was  stricken  out  by,the  more  zealous  majority — 
the  original  title  remaining  unchanged. 

But  suppose  that  only  the  law  of  1829,  is  now  in  force.  What  is  to  be 
its  effect  ?  All  the  laws,  usages,  and  customs  of  the  Cherokees  are  abro- 
gated, and  severe  punishments  denounced  against  those  who  shall  pre- 
sume to  act  under  them.  Their  Government  is  dissolved — their  political 
existence  is  at  an  end — their  nation  is  destroyed — it  is  resolved  into  its^ 
original  elements  !  We  know  that  their  lands  are  not  holden  by  indivi- 
dual ownership  ;  the  title  is  in  (he  nation.  To  annihilate  the  tribe, 
therefore,  as  a  political  community,  is  to  destroy  the  owner  ;  and  the 
State  is  then  to  take  the  whole  by  her  claim  of  succession. 

By  this  statute  ;  no  Cherokee  or  descendant  of  a  Cherokee  can  be  a 
witness  against  any  white  man,  who  does  not  reside  within  the  "nation." 
This  devotes  their  property  to  the  cupidity  of  their  neighbours;  it  leaves 
them  exposed  to  every  outrage,  which  lawless  passions  can  inflict. 
Even  robbery  and  murder  may  be  committed  with  impunity,  at  noon- 
day, if  not  in  the  presence  of  such  whites,  as  will  become  prosecutors  or 
witnesses. 

This,  the  gentleman  from  Georgia  as«!erts,  creates  no  new  disability  ; 
that  Indians  are  not  competent  to  testify,  by  the  common  law,  either  in 
England  or  in  this  country.  That  I  deny.  They  are  good  witnesses 
in  both;  and  have  been  so,  without  question,  ever  since  the  case  of  the 
Gentoo,  in  the  time  of  Lord  Mansfield.  Several  were  recently  admit- 
ted by  the  Courts  of  New  York,  in  a  very  important  question  of  title  to 
real  estate  near  the  falls  of  Niagara  ;  and  1  have  myself  seen  a  person, 
convicted  of  larceny,  to  a  large  amount,  in  the  Supreme  Court  of  Mas- 
sachusetts, upon  the  testimony  ot  an  Indian. 

But  the  gentleman  assigned,  as  a  reason  for  his  assertion,  that  a  be- 
lief in  a  future  state  of  rewards  and  punishments,  was  essential  to  their 
admissibility  as  witnesses.  True,  Sir,  and  so  it  is  with  respect  to  all 
others.  The  objection  is  as  valid  against  a  white  as  a  red  man.  It  this 
act  creates  no  new  disability,  why  was  it  passed  ?  Why  not  leave  tliem 
to  the  provisions  of  the  common  law  ?  But,  Sir,  we  learn  from  an  in- 
telligent Missionary,  that  there  are  a  thousand  members  of  Christian 
Churches. — These,  and  all  other  true  believers  are  excluded.  Even 
those  who  are  so  distinguished  for  their  knowledge,  integrity  and  ability, 
that  the  Honorable  Chairman  would  be  willing  himself,  to  be  represented 
by  them,  in  the  Congress  of  the  United  States,  are  not  permitted  to  tes- 
tify in  a  court  of  justice. 


30 

Under  these  enactments,  the  Cherokees  are  aliens — in  their  native 
land  :  trespassers — upon  their  own  soil :  outlaws — in  the  bosom  of  their 
own  nation  ! 

But  why  should  I  dwell  upon  the  laws  already  passed,  when  the  same 
power  can,  at  will,  produce  others  to  eflectuate  their  avowed  determi- 
nation. Who  will  pretend  that  the  Indians  can  live  under  the  legislation 
of  the  State  ?  The  Head  of  the  Bureau  of  Indian  Affairs,  in  a  communi- 
cation transmitted  to  Congress  by  the  Secretary  of  War,  declares  that  it 
\vill  "seal  their  destruction,  as  admitted  by  their  Chiefs  ;"  and  the 
Hon.  Chairman  has  frankly  declared  in  this  debate,  that  it  will  reduce 
them  to  the  last  degree  of  wretchedness  ; — hi?  words  were — "you  can- 
•'  not  make  a  full  blooded  Indian  more  miserable"  than  by  such  subjec- 
tion ;  and,  in  his  written  opinion  of  1824,  he  emphatically  says,  if  "  the 
"  protection  ot  the  United  States  is  withdrawn,"  "  the  Cherokee  Nation 
"  cannot  exist  twelve  months." 

The  question  now  proposed,  bj'  this  amendment,  is,  shall  that  protec- 
tion be  withdrawn  ;  and  the  Indians  be  compelled  to  leave  their  coun- 
try under  the  penalty  of  certain  destruction,  if  they  remain  ? 

The  interrogatory  has  been  often  repeated,  why  should  not  Georgia 
extend  her  laws  over  the  natives  as  well  as   other  States  ? 

Again,  Sir,  I  reply — our  treaties — our  treaties.  The  Indians  object, 
and  the  United  States  have  solemnly  promised  to  interpose  at  their 
request.  In  no  other  instances  have  they  opposed  State  legislation, 
and  demanded  our  interposition.     This  is  a  sufficient  answer. 

But  this  topic  has  been  so  much  urged,  and  the  effort  has  been  so 
great  to  find  shelter  under  the  precedents  of  other  States,  that  I  will 
bestow  upon  them  a  moment's  attention.  That  principally  relied 
upon,  and  the  only  one  specified,  is  a  law  of  New  York  passed  four 
or  five  years  ago.  The  occasion  was  this.  In  one  of  the  little  reduced 
tribes,  within  that  State,  a  female  had  been  executed  as  a  witch.  The 
executioner  was  indicted  in  the  State  Court  before  one  Judge  and  con- 
victed. The  question  of  jurisdiction  was  carried  to  the  superior  court, 
who  never  come  to  a  decision,  but  advised  a  pardoning  act ;  where- 
upon this  law  was  passed,  which  punishes  certain  high  crimes  commit- 
ted within  the  tribe.  Its  sole  object  was  the  protection  of  the  Indians, 
and  it  seems  to  have  been  by  their  consent.  They  have  never  object- 
ed, much  less  claimed  our  interposition  ?  Does  this  bear  any  analogy 
to  the  case  of  Georgia  and  the  Cherokees  ?  When  another  tribe,  the 
Oneidas,  formed  a  constitution  of  Government  similar  to  that  of  the 
Cherokees,  did  New  York  interfere  to  destroy  it  and  dissolve  the  nation  ? 
Far  otherwise,  they  protectpd  them  in  its  enjoyment.  And  such  has 
been  the  general  character  of  the  legislation  of  other  States.  I  shall 
aot  go  back  to  the  early  days  of  colonial  vassalage,  although  it  is  sur- 
prising that  so  little  colour  of  precedent  is  to  be  found,  even  when  the 
weakness  of  infancy  was  struggling  for  existence  against  the  power  of 
the  savages.  I  speak  of  the  States,  since  they  became  such,  under  the 
Confederation,  or  the  Federal  Constitution  ;  and  say  that  their  general 
legislation  has  been — not  over  the  Indians,  and  acting  upon  the  individuals 
within  the  territory  of  their  tribe;  but  protecting  and  preserving  them  as 
a  distinct  community — operatmg  upon  the  whites  and  restraining  them 
from  inflictiDg  wrongs  and  injuries.     The  legislation  of  Georgia  ha? 


31 

thrown  over  thera  a  net,  which  binds  every  limb  in  fetters ;  but  is  no 
shield  of  defence  against  assaults;  whilst  that  of  other  States  has  erected 
around  them  a  wall  of  defence  guarding  them  against  encroachments. 

This  bill,  Mr.  President,  provides  for  the  removal  of  the  Indians  to 
distant  regions,  beyond  the  Mississippi ;  and  it  is  proposed  to  place  no 
less  than  half  a  million  of  dollars  in  the  hands  of  the  Secretary  of  War 
for  that  porpose.  The  amendment,  now  under  consideration,  declares 
that  they  shall  be  protected,  in  the  enjoyment  of  their  rights,  until  thev 
shall  choose  to  remove.  The  necessity  Ar  such  a  provision  is  apparent. 
Without  it,  they  have  no  option.  Without  it,  this  bill  will  add  to  the 
pressure  of  the  torrent  that  is  sweeping  them  away. 

Is  it  not  known  that  Acts  for  holding  Indian  treaties  have  been  used  as 
instruments  of  coercion.''  When  our  commissioners  have  met  the 
chiefs  in  council  to  obtain  further  acquisitions  of  territory,  have  they 
not  sometimes  asked  only  what  will  you  reserve?  And  when  the  answer 
has  been,  we  have  no  lands  to  spare — we  will  cede  nothing  ;  the  ques- 
tion is  repeated — what  will  you  reserve  1 — Congress  have  passed  a  law 
for  the  purpose  of  obtaining  a  portion  of  your  soil — the  United  States 
are  strong — their  arms  now  sleep  in  peace — beware  how  you  arouse 
them  from  their  slumbers  ! 

iSJot  only  has  terror  been  inspired,  but  other  means  have  been  resort- 
*;d  to,  to  cause  the  women  to  influence  their  husbands  ;  the  children  to 
beseech  their  parents  ;  the  warriors  to  urge  the  chiefs;  until  ti)eir  firm- 
ness is  overcome.  It  is  related  of  a  venerable  chief,  that  yielding  at 
last  to  this  irresistible  pressure,  he  signed  the  fatal  parchment  in  tears — 
declaring  at  the  time  that  it  was  the  death  warrant  of  his  nation. 

Apprehendmg  that  our  object  is  to  obtain  further  cessions,  the  In- 
dians have  met  us  in  council  with  fear  and  trembling.  In  on'?  instance, 
five  or  six  tribes  being  assembled,  our  commissioners  announced  to  thetn 
that  our  only  desire  was  to  establish  and  preserve  peace  among  them- 
selves ;  that  we  a?ked  for  no  lands  : — they  instantly  rent  the  air  with 
acclamations  of  j'^y.  No  difficulties,  no  delays  intervened — the  treaties 
were  accomplished  at  once. 

Is  it  uncharitable  to  suppose  that  agents,  to  be  appointed  under  (he 
direction  of  those  who  are  now  concerned  in  our  Indian  aflairs,  may  re- 
sort to  force  or  terror  ? 

Sir,  the  oflicer  now  at  the  head  of  the  Indian  bureau,  in  his  official 
report  of  a  treaty  of  cession,  made  by  him  with  the  Oeeks,  states  the 
fact,  that  in  two  successive  councils  he  n)et  only  a  tirm  denial  ;  and  iu 
the  third,  be  says,  one  individual  being  most  prominent  in  his  opposition, 
it  Was  not  until  he  ='  broke  him  upon  the  spot"  that  the  treaty  was  ob- 
tained !  Yes,  sir,  that  officer  avows  that  he  "broke"  one  of  the  promi- 
nent chiefs  in  their  own  council,  as  the  only  means  of  accomplishing  his 
purposes ! 

And  in  an  official  communication  sent  to  us  by  the  Secretary  of  War 
at  the  commencement  of  this  session,  the  same  officer  recommends  thi.t 
the  government  should  send  an  "  armed  force"  to  the  Cherokee  coun- 
try, to  further  the  objects  of  this  bill — the  removal  of  the  natives.  He 
says  indeed,  that  he  would  make  a  solemn  declaration  that  the  military 
were  not  to  be  used  to  compel  thera  to  leave  their  country  ;  but  only 
to  give  security  to  those  that  were  willing  to  go.    And  would  such  a  de- 


32 

claration,  even  if  made,  do  away  the  effect  of  the  presence  of  our 
bayonets  ?  What  is  the  avowed  purpose  ?  To  protect,  against  their 
own  government  and  people,  the  individuals  who  may  choose  to  emi- 
grat'.'  ;  but  not  to  afford  any  aid  or  countenance  to  those  that  may  choose 
to  remain.  The  chiets  may  inquire — will  these  soldiers  give  us  protec- 
tion against  the  power  of  Georgia,  if  she  shall  attempt  to  force  her  laws 
upon  us  ?  The  reply  must  be,  Oh  no — the  President  has  decided  that 
she  has  a  right  to  govern  you ;  and  if  you  should  resist,  the  United  States 
are  bound  to  assist  her  m  the  execution  of  her  laws  against  all  opposi- 
tion. When  the  British  minister  remonstrated  against  the  Emperor  Alex- 
ander's annexing  a  part  of  Poland  to  his  dominions  he  replied — I  have 
three  hundred  thousand  soldiers  in  that  country.  The  argument  was 
conclusive.  If  the  Cherokees  should  hesitate;  they  might,  in  significant 
silence,  be  pointed  to  our  glittering  bayonets  ! 

It  is  recommended  to  send  an  armed  force  to  enable  the  Cherokees  to 
deliberate  freely  ! 

When  the  Roman  orator  appeared  in  defence  of  Milo  ;  he  found  the 
forum  surrounded  by  an  armed  force,  accompanied  no  doubt  by  the  rfe- 
claration  that  it  was  only  to  preserve  tranquillity.  But  even  the  tongue 
of  Cicero  was  palsied  by  the  formidable  array,  and  his  friend  and  client 
was  abandoned  to  his  fate.  We  know,  Sir,  how  the  deliberations  of  the 
Parliament  of  Great  Britain,  and  the  National  Conventions  of  France, 
h;:ve  been  aided  by  the  presence  of  an  armed  force  ;  and  history  abounds 
with  similar  examples. 

I  confes?.  Sir,  that  I  cannot  but  indulge  fears  of  the  use  which  may  be 
made  by  the  War  Department,  of  the  half  of  million  of  dollars,  to  be  ap- 
propriated by  this  bill.  We  do  know,  that,  in  making  Indian  treaties, 
there  have  been  instances  of  valuable  reservations  of  lands,  and  large 
sums  of  money,  being  secretly  given  to  individual  Chiefs,  by  confidential 
arrangements,  to  induce  them  to  yield  to  our  wishes  and  betray  the  con- 
fidence reposed  in  them  by  their  nation.  Is  it  uncharitable  to  appre- 
hend that  such  things  may  happen  under  the  directions  of  the  present 
Secretary  of  War  ? 

Toward  that  high  officer  I  have  no  feeling  of  unkindness.  I  seek  no 
imputation  upon  his  motives;  but  his  official  acts  lam  bound,  by  the  dutie; 
of  my  station,  to  examine.  Look  at  the  instructions  given  by  him  in  May 
last,  to  General  Carroll  who  was  sent  as  an  agent  of  the  Government  t© 
induce  the  Cherokees  to  a  removal.  They  express  throughout  much 
solicitude  for  the  welfare  of  the  Indians,  and  profess  to  consult  their  best 
interests.  But  I  am  constrained  to  look  at  the  acts  to  be  done — the  course 
of  conduct  prescribed  He  is  directed  not  to  meet  the  Cherokees  in 
*'  general  Council"  for  ''  the  consequence  would  be,  what  it  has  been,  a 
"  firm  refusal  to  acquiesce;"  but  to  "  appeal  to  the  Chiefs  and  influen- 
"  tial  men — not  together,  but  apart  at  their  own  houses  ;  and  to  make 
"  qff'ers  to  them  of  extensive  reservations  in  fee  simple  and  other  rewards^' 
to  obtain  "  their  acquiescence."  He  is  further  told — the  more  careful 
"  you  are  to  secure  from  even  the  Chiejs  the  official  character  you  bear 
"the  better" — and  again  "  Go  to  them  not  as  a  negotiator,  hul  friend.'' 
<'  Open  to  each  a  view  of  his  danger" — again,  "  enlarge  on  their  compar- 
"  ative  degradation  as  a  people  and  the  total  impossibility  of  their  ever 
'•  attaining  to  higher  privileges  while  they  retaia  their  present  relations 


33 

•'  10  a  people  who  seek  to  gel  rid  of  them"— that  their  laws  "will  be  sii- 
•'  perceded  and  trodden  under  foot."  Again— "  enlarge  upon  the  ad- 
"  vantage  of  their  condition  in  the  West—Xheve  the  General  Government 
"  would  protect  ihem— improve  them  by  instruction."  They  would  be- 
rome  our  equals  in  privileges  civil  and  religious,  and  that  "  by  refu- 
"sing"  to  remove  "they  must,  necessarily,  entail  destruction  upon 
"their  race." 

1  cannot  but  remark  the  parallel,  between  the  course  here  prescribed 
and  that  which  expelled  our  lirst  parents  from  Paradise. 

When  theArch  Tempter  sought  their  removal,  he  assailed  them  "  not 
together;''  leal  their  joint  '' coimcil"  should  have  baffled  his  arts;  but 
found  the  feebler  woman  ''apart''  from  her  husband,  dej.rived  ofthe 
aid  of  her  natural  adviser — and  carefully  concealing  his  '■'official  charac- 
ter"—of  ShVm'ic  majesty  ;  assuming  the  guise  of  a  "friend;"  a  kind  in- 
structor ;  he  told  her  pursue  the  course  which  I  advise,  and  the  evils 
which  have  been  predicted  shall  not  iollow  ! — "ye  shall  not  surely 
"  die"-^but  you  shall  be  enlightened  and  elevated — "your  eyes  shall 
"be  opened  and  ye  shall  be  as  g«jds  knowing  good  and  evil-"  She 
listened  and  yielded — 

"  Earth  felt  the  wound,  and  natuve  from  her  seat 
"  Sighing  through  all  her  works  gave  signs  of  woe 
"  That  all  was  lost." 

She  was  then  made  the  instrument  of  seducing  the  man  also — And  both 
were  driven  from  the  garden  of  Eden,  where  their  Creator  had  placed 
them,  to  the  unsubdued  wilderness  of  the  world — and  a  flaming  sword 
forever  barred  their  return. 

The  adoption  of  such  measures  is,  in  the  language  of  the  military  Se- 
cretary to  "move  upon  them  in  the  line  of  their  prejudices"  And 
upon  whom  is  it  that  we  thus  move?  Those  whom  we  have  most 
solemnly  promised  to  protect  as  faithful  guardians  ;  whom  we  have 
called  brothers  ;  whom  we  have  taught  to  look  up  to  the  President,  as 
their  great  father.  Yes,  we  have  endeavored  to  obtain  over  them  the 
influence  of  a  parent ;  but  do  we  perform  toward  them  the  duties  of  that 
sacred  relation  ? 

It  is  said  that  we  must  resort  to  such  measures  ;  they  are  unavoida- 
ble. The  plea  of  state  necessity  is  advanced.  And  is  this  great  coun- 
try, with  peace  in  all  its  borders,  now  controlled  by  an  irresistible  pow- 
er, that  knows  no  rule  and  consults  no  law  ?  Does  tiiis  measure  wear 
the  garb  of  state  necessity?  Thai,  Sir,  is  a  high -banded  tyrant — not  a 
smooth-tongued  seducer.  It  is  a  lion,  seizing  its  prey  with  open  and 
resistless  fctrength — not  a  serpent  winding  its  sinuous  way  in  secret  to 
its  victim. 

Without  the  adoption  of  this  amendment,  the  Cherokees  have  no 
choice,  but  between  the  miseries  of  emigration,  and  destruction  where 
they  are.  It  is  contended  that  it  is  for  their  best  interest  to  remove. 
Leave  that.  Sir,  to  their  own  decision.  Our  judgment  may  be  too  much 
guided  by  our  own  convenience.  We  undeitook  to  judge  for  the  Se- 
minoles  in  Florida.  We  asked  for  their  fertile  lands  ;  they  objected, 
.5 


34 

asserting  that  the  residue  would  not  support  existence.  We  peisisled  ; 
and  found  inians  at  last  to  obtain  a  reluctant  ce-sion.  They  departed 
in  the  deepest  sorrow  from  their  homes  of  comfort  and  plenty,  to  en- 
counter want  and  misery  upon  a  barren  waste.  Nineteen-twentieths 
of  the  territory  which  we  left  to  them,  consisted  of  sands  vvhere  no 
verdure  quickened,  and  of  swamps  upon  which  humm  life  could  not  be 
sustained.  The  draary  description  offi:ialiy  civea  by  Governor  Duval 
can  hardly  be  exceeded.  The  consequence  was,  wh  it  the  Seminoles 
foresaw — want,  suffering,  and  starvation.  The  government  was  forth- 
with compelled  to  give  twenty  thousand  dollars  for  food  to  preserve 
life,  and  to  retrocede  a  portion  of  their  territory. 

Whither  are  the  Cherokees  to  go  ?  Wiat  are  the  benefits  of  the 
change?  What  system  has  been  mitured  for  their  security?  What 
laws  for  their  government?  These  questions  are  answered  only  by 
gilded  promises  in  general  terms  ;  they  are  to  become  enlightened  and 
civilized  husbandmen. 

They  now  live  by  the  cultivation  of  the  soil,  and  the  mechanic  arts. 
It  is  proposed  to  send  them  from  their  cotton  fields,  their  farms  and 
their  gardens;  to  a  disiant  and  an  unsubdued  wilderness — to  make 
them  tillers  of  the  earth  I — to  remove  them  from  their  looms,  their 
work-shops,  their  printing  press,  their  schools,  and  churches,  near  the 
white  settlements  ;  to  frowning  forests,  surrounded  with  naked  sava- 
ges— that  they  m  ly  becom^.  enlightened  and  civilized  1  We  have  pledg- 
ed to  them  our  protection — and  instead  of  shielding  them  where  they 
now  are,  withm  our  reach,  under  our  own  arm,  vve  send  these  natives 
of  s  southern  clime  to  northern  regions,  amongst  fierce  and  warlike 
barbarians  And  what  security  do  vve  propose  to  them? — a  new  guar- 
antee !  !  Who  can  look  an  Indian  in  the  face  ;  and  say  to  him  ;  we 
and  our  fathers,  for  more  than  forty  years,  have  mide  to  you  the  most 
solemn  promises  ;  we  now  violate  and  trample  upon  them  all  ;  but  offer 
you  in  their  stead — another  guarantee  !  ! 

Will  they  be  in  no  danger  of  attack,  from  the  primitive  inhabitants 
of  the  regions  to  which  they  emigrate?  How  can  it  be  otherwise? 
The  oflBcial  documents  show  us  the  fact,  that  some  of  the  few,  who  have 
already  gone,  were  involved  in  conflicts  with  the  native  tribes,  and  com- 
pelled to  a  second  removal. 

How  are  they  to  subsist  ?     Hts  not  that  country  now,  as  great  an  In- 
dian population,  as  it  can  sustam  '     What  has    become  of  the   original 
occupants?     Have  we  not  already  caused  accessions  to  their  numbers, 
and  been  compressing  them  more  and  more  ?     Is  not  the  consequence 
inevitable,  that  some  must  be  stinted  in  the  means  of  subsistence  ?  Here 
too,  we  have  the  light  of  experience.  By  an  official  communication,  from 
Governor  Clark,  the   Superintendent    of  Indian  affairs  ;  we  learn   that 
the  most  powerful  tribes,  west  of  the  Mississippi,  are,  every  year,  so  dis- 
tressed  by  famine,  that  many  die  for  want  of  food.     The  scenes  of  their 
suffering  are  hardly  exceeded  by  the  sieges  of  Jerusalem,  and  Samaria. 
There  might  be  seen  the  miserable  mother,  in  all  the  tortures  which 
hunger  can  inflict,  giving  her  last  morsel  for  the  sustenance  of  her  child, 
and  then  fainting,  sinking,  and  actually  dying  of  starvation  !     And  the 
orphan  ? — do  one  can  spare  it  food — it  is  put  alive  into  the  grave  of  the 


36 

parent,  which  thus  closes  over  the  quick  and  the  dead  !  And  this  not  in 
a  solitary  instance  only,  but  repeatedly  and  frequently.  "  The  living 
"  child  is  often  buried  with  the  dead  mother."* 

Mr.  President :   I  am  aware  that  their  whits  neighbors  de«ire  the  ab- 
sence of  the  Indians  ;  and  if  they  can  tind  safety  and  subsistence  beyond 
the  Mississippi,  I  should  rejoice  exceedingly  at  their  removal,    becausft 
it  would  relieve  the  States,  of  their  presence.     I  would  do  much  to  ef- 
fect a  consummation  so  devoutly  to  be    wished.     But  let  it  be  by  their 
own  free  choice,  unawed  by  fear,  unseduced  by  bribes.  Let  us  not  com- 
pel them,  by  withdrawing  the  protection,  which  we  have  pledged.  Theirs 
must  be  the  pain  of  departure,   and  the  hazard  of  the  change.     They 
are   men,   and    have  the  feelings    and  attachments    of  men;   and  if  all 
the  ties  which  bind  them  to  their  country,  and  their  homes  are  to  be  rent 
asunder;  let  it  be  by  their  own  free  hand.     If  they  are  to  leave  forever 
the  streams,  at  which  they  have  drank,  and  the  trees  under  which  they 
have  reclined:  if  the  tires  are  nevermore  to  be  lighted  up  in  the  council 
house  of  their  chiefs;  and  must  be  quenched  forever  upon  the  domestic 
hearth,  by  the  tears  of  the  inmates,  who  have  there  joined  the  nuptial 
feast,  and  the  funeral  wail  :  if  they  are  to  look  for  the  last  time  upon  the 
land  of  their  birth — which  drank  up  the  blood  of  their  fathers,  shed  in  its 
defence — and  is  mingled  with  the  sacred  dust  of  children  and  fiiends — to 
turn  their  aching  vision  to  distant   regions  enveloped  in  darkness  and 
surrounded  by  dangers — let  it  be  by  their  own  tree  choice,  not  by   the 
coercion  of  a  withdrawal  of  the  protection  of  our  plighted  faith.     They 
can  best  appreciate   the  dangers  and  difficulties  which  beset  their  path. 
It  is  their  fate  which  is  impending  ;  and  it  is  their  right  to  judge  ;  while 
we  have  no  warrant  to  falsify  our  promise. 

It  is  said  that  their  existence  cannot  be  preserved  ;  that  it  is  the  doom 
of  Providence,  that  they  must  perish.  So  indeed,  must  we  all  ;  but  let 
it  be  in  the  course  of  nature  ;  not  by  the  hand  of  violence.  If  in 
truth,  they  are  now  in  the  decrepitude  of  age;  let  us  'permit  them  to 
live  out  all  their  days,  and  die  in  peace  ;  not  bring  down  their  grey 
hairs  in  blood,  to  a  foreign  grave. 

I  know.  Sir,  to  what  I  expose  myself.  To  feel  any  solicitude  for  the 
fate  of  the  Indians  may  be  ridiculed  as  false  philanthropy  and  morbid 
sensibility.  Others  may  boldly  say,  "  their  blood  be  upon  us;"  and 
sneer  at  scruples,  as  a  weakness,  unbecoming  the  stern  character  of  a 
politician. 

If,  Sir,  in  order  to  become  such,  it  be  necessary  to  divest  the  mind 
of  the  principles  of  good  faith  and  moral  obligation;  and  harden  the  heart 

*  Extract  from  an  official  report  of  General  Clark,  Superintendent  of  Indian  Af- 
fairs, dated  March  1,  1826. 

"  The  condition  of  many  tribes  west  of  the  Mississippi  is  the  niost  pitiable  that  can 
"  be  imagined.  During  several  seasons  in  every  year  they  are  distressed  by  limine, 
"  in  which  many  die  for  want  of  food,  and,  during  which,  the  living  child  is  often  bu- 
"  ried  with  the  dead  mother,  because  no  one  can  spare  it  as  much  food  as  w>'uld 
*'  sustain  it  through  its  helpless  infancy.  This  description  applies  to  Sioux,  Osages, 
"and  many  others,  but  I  mention  those  because  they  are  powerful  tribes,  and  live 
"  near  our  borders,  and  my  official  station  enables  me  to  know  the  exact  truth.  I'. 
"  is  in  vain  to  talk  to  people  in  this  condition  about  learning  and  religion.'' 


3t> 

against  every  touch  ol  humanity  ;  I  confess  that  1  am  uot,  and,  by  the 
blessing  of  Heaven,  will  never  be — a  politician. 

Sir,  we  cannot  wholly  silence  the  monitor  within.  It  may  not  be 
heard  amidst  the  clashings  of  the  arena;  in  the  tempest  and  convulsions  ot 
political  contentions  :  but  its  "  still  small  voice"  will  speak  to  us — when 
we  meditate  alone  at  even  tide  ; — in  the  silent  watches  of  the  night ; — 
when  we  lie  down  and  we  rise  up  from  a  solitary  pillow  ; — and,  in  that 
dread  hour,  when — "  i^ot  what  we  have  done  for  ourselves,  but  what  we 
have  done  for  others"  will  be  our  joy  and  our  strength  ;  when — to  have 
secured,  even  to  the  poor  and  despised  Indian,  a  spot  of  earth  upon 
which  to  rest  his  aching  head, — to  have  given  him  but  a  cup  of  cold 
water,  in  charity;  will  be  a  greater  treasure  than  to  have  been  the  con- 
querors of  kingdoms,  and  lived  in  luxury  upon  their  spoils. 


mv.  OF  CALIF,  LIBJtm,  LOS 


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